The Long Decline of the Death Penalty

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The Long Decline of the Death Penalty: Issuing pardons is a tricky business for governors. There’s always the danger that someone whose crime you’ve forgiven will commit another horrible act, with the media and the public blaming you. Oklahoma Gov. Kevin Stitt, who has been an active pardoner as part of his overall criminal justice reform program, was confronted with an ad this year blaming him for an alleged killer’s early release.

But pardons are also a responsibility that’s been central to the office since the nation’s founding. “To me, it was part of the job description,” says Robert Ehrlich, a former governor of Maryland.

Because of the political risks, it’s common for governors to issue pardons on their way out the door. After losing his re-election bid in 2019, Kentucky Gov. Matt Bevin issued 161 pardons and 419 commutations, many involving controversial cases. One pardon went to a killer whose family had hosted a fundraiser for Bevin. Back in 1979, Lamar Alexander was sworn in as Tennessee governor three days early, with the FBI arresting three members of his predecessor’s staff for selling pardons, paroles and commutations. (That governor, Ray Blanton, became known as “Pardon Me Ray,” inspiring a song by that name.)

More high-minded pardons can be controversial also. During his last week in office back in 2003, Illinois Gov. George Ryan pardoned four prisoners condemned to death and commuted the sentences of the 167 death-row inmates to life. That was the largest set of commutations in modern U.S. history.

Oregon Gov. Kate Brown, who is leaving office next month, has just issued the second-largest set. On Dec. 13, Brown commuted the sentences of all 17 prisoners on Oregon’s death row and ordered the state’s execution chamber dismantled. “The death penalty is immoral,” she said. “The state should not be in the business of executing people, even if a terrible crime placed them in prison.”

Her action came about three weeks after she’d issued a blanket pardon for possession of an ounce or less of marijuana. That let more than 47,000 people off the hook, forgiving them of $14 million in fines and fees.

Given the fact that crime was a central issue in the race to replace her – the homicide rate more than doubled in Portland between 2019 and 2021 before setting another new record this year – not everyone is applauding Brown’s clemency actions. “Victims of violent crimes in Oregon live on the perpetual edge, ever-concerned that their perpetrators will be released early and without their knowledge, which has happened here multiple times since 2020,” says Bed Edtl, founder of Free Oregon, a group that promotes individual liberty and has been critical of Brown.

Oregon has had an ambivalent relationship with the death penalty going back decades. Gov. Mark Hatfield commuted all death sentences in the state in 1964, two days after voters abolished the death penalty via ballot measure. Voters changed their minds in 1978, reinstating the death penalty. They did that again in 1984, three years after the state Supreme Court had abolished it.

Oregon’s had a moratorium on executions since 2011. “What Gov. Brown recently did with Oregonians on death row was very significant and important,” says Sandy Chung, executive director of the ACLU of Oregon. "The death penalty is cruel and unconstitutional, it’s racist, it’s been unjustly applied to people with serious mental illnesses and it’s also very costly.”

In part due to such arguments, as well as the growth in sentences of life without the possibility of parole, use of the death penalty has long been in decline. During the 1990s, some years saw more than 300 death sentences meted out; this year, there were 20. The number of actual executions peaked at 98 in 1999, according to the Death Penalty Information Center. This year, there have been 18.

Another state abolishes the death penalty almost every year. Last year, Virginia – once a leading execution state – became the 23rd state to do away with the process altogether. Chung says she hopes Brown’s example will inspire other governors. California Gov. Gavin Newsom says wholesale commutation is an idea that’s “long been considered.”

Steve Sisolak, the outgoing governor of Nevada, hoped to persuade the state’s pardon board to reduce all death sentences to life without parole. On Monday, a court blocked him, ruling that there wasn’t enough notice given to victims.

Blanket vs. Case by Case: Robert Dunham, who directs the Death Penalty Information Center, notes that abolition is happening not just in states but within them. Counties that once pursued large numbers of death sentences, such as Philadelphia and Los Angeles, now seek them out rarely, or never. Harris County, which includes Houston, has executed more prisoners than any state other than Texas. Since Kim Ogg was elected as district attorney in 2016, however, she has sought the death penalty only twice.

Other so-called progressive prosecutors vow not to seek the death penalty at all. “In Oklahoma County, the former executive director of the Oklahoma Innocence Project was elected district attorney last month,” Dunham notes. “Oklahoma County is responsible for more executions than any county its size in the United States, and any county at all outside of Texas.”

It was important that Brown emptied out death row entirely, says Chung, the ACLU official. “The way we see it, what the governor is trying to do is address systemic problems with our criminal justice system,” Chung says. “The only way to address systemic problems is with systemic solutions, not individualized solutions.”

Again, there’s always a risk. Brown forgave people charged with possession, but it’s not hard to imagine that among more than 47,000 cases, some may have involved dealers or other, more serious offenders who managed to plea down a charge.

Ehrlich, the former Maryland governor, says it was important to weigh each case on its merits. Pardoning someone busted as a teenager for possession to allow clearance for a government job was a no-brainer. “When you have cold, life-without-parole cases and commute those, that’s serious stuff,” Ehrlich says. “You’re dealing with public safety.”

Of the five lawyers working in his office of legal counsel, two and a half were devoted to pardons and commutations. As governor, Ehrlich decided individual fates at monthly meetings, sometimes requesting more information about already carefully researched cases.

Clemency is important, Ehrlich says, describing it as another chance to achieve justice. But, given the dangers, he argues for taking great care and consideration. “In my view, it lends itself to a formal process,” he says. “That means you devote resources to it.”

Pennsylvania House Dispute Continues: If your party wins a majority, it gets to set the agenda for a legislative body. But what if it lacks the votes?

That’s the question in Pennsylvania. Democrats won a majority of state House races last month for the first time in a dozen years, coming away with a 102-101 edge. Their tenuous hold on power, however, may have slipped away immediately. One of their successful candidates had died before Election Day, while two others have already left to become lieutenant governor and a member of Congress.

There’s not much doubt that Democrats will win those seats in special elections, but they haven’t done so yet. What makes things especially tricky is that in Pennsylvania, it’s the presiding officer of the chamber itself who gets to call special elections.

Who is that? Joanna McClinton, the Democratic leader, called for elections in February. Republicans say elections should be held in May, the latest possible under state law. Not only that, they filed suit last week to block the proposed February date, while putting forward their own candidate for speaker.

Both sides are clearly acting in their own self-interest. There’s not much legislation Republicans can hope to pass over incoming Democratic Gov. Josh Shapiro’s veto, but they can potentially approve measures to put before voters regarding voter ID and an expansion of the Legislature’s ability to overturn regulations.

In a democracy, the party with the most votes is supposed to win. As of now, Democrats don’t have those. McClinton received the ultimate insult for a Democrat, with an opinion piece in the Philadelphia Inquirer headlined, “State Rep. McClinton can no more declare herself speaker than Trump can declare himself president.”

Given such political gamesmanship, maybe it would be better to give the governor or some other entity with less of a direct interest the power to set dates for special elections.

Odds and Ends: The Pennsylvania House was one of the few chambers to flip this year. In fact, in most states, the party in power only got stronger. “Democrats gained additional seats in 15 states where they’re already a majority in the legislature and Republicans did the same in an additional 16 states," notes Bill Kramer, vice president of the lobbying group MultiState. “In a total of 31 states, the red states got redder and the blue states got bluer …”

Republicans now rule state agriculture offices. That is, Republicans will be in charge, as of January, in all states that elect agriculture commissioners directly. That’s a first. Maybe it’s not a surprise, given that most such states are in the South, but as recently as 1999, Democrats held 10 of the 12 elected positions …

This month, Congress passed a law granting federal recognition of same-sex marriages. Some of the few Republicans who voted for it were criticized at home. Several county parties in Iowa censured Sen. Joni Ernst, while the Cass County GOP sent a censure letter to Indiana Sen. Todd Young.

Interestingly, a new poll suggests that support for same-sex marriage is not seen as apostasy by Republican voters. Fifty-four percent of GOP voters say you can call yourself “a good Republican” if you support same-sex marriage, according to a Monmouth University poll – about the same who are OK with acknowledging Joe Biden’s legitimate election as president. Only 38 percent are OK with other Republicans supporting legal abortion …

Lots of states have sought to make it harder for voters to approve ballot measures. Such an effort just failed in Ohio, however. A proposal to require ballot measures to win with 60 percent supermajorities lacked enough votes for passage in the Ohio House. “Some self-interested politicians in Ohio are trying to undermine the will of the people by enacting a 60 percent supermajority threshold,” says Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center in Washington. “Together, we can defend against the attacks on our rights and our democracy and protect Ohioans’ ability to make decisions for themselves.”

Editor’s note: Because of the holidays, the next biweekly edition of Inside Politics State and Local with Alan Greenblatt will be Jan. 12, 2023.