Living Death: Ambivalence, Delay, and Capital Punishment

Abstract

Most discussions about capital punishment in the United States treat the distinct phenomena of death sentencing and execution as joined: in the ordinary case, it is assumed, the first will lead eventually to the second. But in fact it is exceptional for a death sentence to cause the death of the individual sentenced. During the entire modern death penalty era, since 1976, the ratio of death sentences pronounced in the U.S. to those carried out has been about six to one.

This Article seeks to investigate the causes of the disparity. It surmises that our tolerance for it grows out of political and institutional ambivalence about capital punishment, and undertakes to identify which actors and processes enact this ambivalence and thus hinder the conversion of death sentences into executions. My research assistants and I chose a small number of jurisdictions that we found representative in which to study the post-sentence careers of death row inmates. We considered the roles of death while in prison, executive clemency, and federal habeas corpus intervention in creating attrition from death row, but taken together these events failed to account for all (indeed, even very much) of the disparity. We investigated in more detail the frequency of sentence reversal by postconviction appeal or collateral state remedies, but contrary to expectation, we found that these processes could not account for the disparity we had observed.

We then undertook a more granular study, following the careers of a cohort of death row inmates, all of whom resided on death row in 1995 (and nearly half of whom still reside there today). Our findings suggest that the most powerful explanation was simply delay. Our study population consists entirely of prisoners who have been under sentence of death for seventeen years or longer, yet more of them (in some of our jurisdictions many more) are still alive and under sentence of death than have been executed. To be sure, necessary and expected legal processes consumed some of the intervening years, and the Article investigates and discusses the developments in capital punishment law that have contributed to impeding the march of execution.

A variety of measures have been designed to hasten the processing of capital cases between sentence and execution, but they have been unsuccessful. Since 1976, the typical interval between sentence and execution has grown markedly over time, cannot really be explained by necessity, and begins to resemble a permanent feature of the system of capital punishment. Although predicting the outcome of individual cases is difficult, it appears that many death sentences that have not been carried out will never be carried out, and that we have accommodated ourselves to this reality.

In closing, the Article discusses the implications of these observations for our national conversation about capital punishment, considers the recent landscape of explicit death penalty abolition activity (especially in California), and makes some predictions about the future of capital punishment.

Keywords: Death penalty, Capital punishment, Post-conviction remedies, Habeas corpus, Ambivalence, Delay, Criminal law, Cruel and unusual punishment

JEL Classification: H70, K14, K41, KK42