a crisis of confidence: americans' doubts about the … · and that a moratorium should be ......

A CRISIS OF CONFIDENCE:Americans’ Doubts About

the Death Penalty

A Death Penalty Information Center ReportBased on A National Opinion Survey

By Richard C. DieterExecutive Director

June 2007

A Crisis in Confidence, page 1

For many Americans, their patience with the death penalty is wearingthin. Rather than there being some light at the end of the tunnel after thirtyyears of experiment, the prospects for successful reform of the system seemless and less likely.

IntroductionAccording to a national public

opinion poll conducted in 2007,the public is losing confidence inthe death penalty. People aredeeply concerned about the risk ofexecuting the innocent, about thefairness of the process, and aboutthe inability of capital punishmentto accomplish its basic purposes.Most Americans believe thatinnocent people have alreadybeen executed, that the deathpenalty is not a deterrent to crime,and that a moratorium should beplaced on all executions.

Many in America also believethey would be disqualified fromserving on a jury in a capital casebecause of their moral objections.Among women and Catholics,nearly half believe they would beexcluded. Two-thirds of blacksbelieve they would bedisqualified. Even among thosewho support the death penaltyand believe they would bequalified to serve on a capital jury,the risk of convicting or executingthe innocent would make themless likely to vote for a deathsentence.

While a majority still supportthe death penalty in theory, it isbecoming irrelevant to manyAmericans because it is rarely

applied, and not always to theworst offenders. Life withoutparole sentences are becomingmore attractive to manyAmericans, and it is the preferablechoice over the death penalty formajor subgroups of thepopulation. Two-thirds ofAmericans do not believe thatreforms of the death penaltysystem will eliminate itsproblems.

The public's lack of confidencein the death penalty is beingechoed by representatives ofvictims' groups, by formersupporters of the death penalty,and in the editorial pages of thenation's newspapers. Althoughthe dissatisfaction with capitalpunishment has many roots, thecommon and principal concernheard throughout the country isthe risk that innocent people maybe caught up with the guilty.


Poll ResultsThe Supreme Court has said

that the death penalty shouldreflect the "conscience of thecommunity,"1 and that itsapplication should be measuredagainst society's "evolvingstandards of decency."2 In allstates, a defendant is entitled tohave a jury determine whether heor she is eligible for a deathsentence.3 In almost all states, thejury also makes the crucialdecision on the actual sentence.But a recent National OmnibusPoll conducted by RT Strategiesfor the Death Penalty InformationCenter in early 2007 indicates thatthere is a deep divide in the

community that is called upon tomake such decisions.

Nearly 40% of the publicbelieves that they would bedisqualified from serving on ajury in a death penalty casebecause of their moral beliefs.Over two-thirds (68%) of African-Americans in this survey believethey would be excluded as capitaljurors; 48% of women reached thesame conclusion, and 47% ofCatholics. While these latternumbers are based on sub-samples with a larger margin oferror than the whole poll, theypoint to a problem ofunrepresentative capital juriesthat do not reflect the country'strue diversity.

Many Americans Believe They Would Be Disqualified from Capital Juries

47%

68%

48%

39%

57%

0% 10% 20% 30% 40% 50% 60% 70% 80%

Would Qualify forJury

Catholics

African Americans

Women

GeneralPopulation

Percent of Group Expressing Belief


Jurors in capital cases must beinterrogated about their positionson the death penalty. If they areopposed to it in all cases, they willnot be permitted to serve. Theresultant juries look different thansociety at large because they willhave less minority members, lesswomen, and none of those whorepresent one side on this divisiveissue. If the percentage of thosewho would be excluded for theirviews were miniscule, it might notpose a serious problem. But whenthe numbers grow to representnearly half, or even a majority, ofsignificant groups in society, thesystem runs the danger of beingundemocratic.

An Erosion ofConfidence

Americans have endorsed thedeath penalty for generationsbecause they believed it mightcontribute to saving lives. For along time, deterrence was theprincipal reason that Americansgave for their support of capitalpunishment.4 But today, fewcitizens believe that the deathpenalty serves as a deterrent.Only 38% of respondents in thisrecent poll believe that the deathpenalty is a deterrent; 60% said itwas not.

But a larger problem hasemerged to challenge the notionthat the death penalty saves lives.By a wide margin, the Americanpublic believes that the mostsignificant development in thedeath penalty in recent years hasbeen the advent of DNA testingand the proof that many who

were sentenced to death wereinnocent. The availability of life-without-parole sentences and theexclusion of juveniles fromexecution were much lesssignificant to the public.

Over 120 people have beenfreed from death row since 1973after their convictions wereoverturned.5 Many came close toexecution before being cleared ofall the charges that sent them todeath row. In some cases, it wasthe fortuitous advance of DNAscience that led to theirexoneration. In other cases, it wasthe work of journalism studentsor others outside the legal systemwho re-investigated whatappeared to be closed cases.

In addition to those freed fromdeath row, many have recentlybeen exonerated of non-capitalcrimes, putting the judicial systemfurther on the defensive. Twohundred people have had theirconvictions dismissed because ofDNA testing since 1989.6Frequently, the justice systemresisted acknowledging the newevidence that was uncovered,even though it pointed to the

60%

38%

2%

NO

YES

NOT SURE

Is The Death Penalty a Deterrent to Murder?


innocence of the originaldefendant.

Seeing these repeated mistakesin determining the underlyingguilt of those facing execution hassharply eroded the public'sconfidence in the death penalty.Particularly in this area, the publicwants much more assurance thatthe system works reliably. Formany Americans, their patiencewith the death penalty is wearingthin. Only 39% of the publicexpressed either complete or"quite a bit" of confidence that thejustice system sentences only theguilty to death.

A strong majority of 75% ofthose polled believe that we needa higher standard of proof forguilt in death penalty cases. Thestandard of "proof beyond areasonable doubt" may besufficient when an inmate will

still be alive if new evidenceoverturns his conviction. Butbefore the state should be allowedto execute an individual, a higherdegree of confidence that it hascharged the right person isrequired.

Unfortunately, the search fortruth in death penalty cases isobscured by the fact that jurorsare chosen from only certainsegments of society. Researchindicates that those who supportthe death penalty are also morelikely to support the government'scase, more likely to believe policetestimony and witnesses for theprosecution.7 While such sourcesare often credible, the errors thathave occurred in capital caseswhere innocent people have beenwrongly convicted often stemfrom erroneous identificationsand other testimony offered bythe state.8 In capital cases it is

37%

0 10 20 30 40 50 60 70

Lessened Support /Strengthened

Opposition

No effect

Lessened Support Strengthened Opposition

Effect of Hearing About Exonerations onDeath Penalty Views

37%


especially important that peoplewith a wide range of viewpointscritically examine the evidence,but the exclusion of the citizensmost likely to be skeptical of thestate's evidence makes this goalharder to achieve.

Most Americans have beenaffected by the news of so manyexonerations in death penaltycases. Only 37% said that suchnews had no effect on theirposition on the death penalty.Sixty percent (60%) of Americanssaid that these wrongfulconvictions had either lessenedtheir support for the deathpenalty or strengthened theiralready existing opposition.

The Ultimate Error:Executing the Innocent

A similar question regardingthe execution of possibly innocentdefendants also indicated thatsuch information lessens supportfor the death penalty. And theoverwhelming majority ofAmericans (87%) already believesthat the final tragedy hasoccurred: that innocent peoplehave been executed in recentyears.

Because courts do not typicallyprovide a forum for determiningthe innocence of someone whohas already been executed, andbecause states do not payattorneys to pursue such claims, itis difficult to know how manyinnocent people have been put todeath. Four cases in the past fewyears that were thoroughly re-investigated after executionindicated a strong likelihood that

such mistakes have been made.9

Larry Griffin was executed inMissouri, Ruben Cantu, CameronWillingham, and Carlos de Luna(pictured) were executed in Texas.In all four cases, new evidence hasemerged that has thrownconsiderable doubt on theiroriginal convictions.

In Griffin's case, the first policeofficer on the scene has now givena new account of the evidence.Willingham's case was exposedthrough an investigation by theChicago Tribune. He had beenconvicted of murder by arson, butnow new scientific analysis hasquestioned whether any arson(and hence any crime) everoccurred.

In de Luna's case, alsoinvestigated by the ChicagoTribune, another repeat offendernow appears to be the likely killer.Ruben Cantu's case, the third ofthe cases from Texas, wasinvestigated by the HoustonChronicle. The former DistrictAttorney who oversaw theprosecution now believes thatCantu was probably innocent andhe has apologized for whathappened.10 An investigation wasopened by the new DistrictAttorney in San Antonio.


However, this D.A. had served asa judge on Cantu's appeal andsigned his death warrant.11 Thisconflict of interest has clouded theinvestigation.

Of those who believe that aninnocent person has already beenexecuted, 55% say that hasaffected their opinion of the deathpenalty, either making them moreskeptical of capital punishment ormore opposed to it entirely. Lessthan a third (31%) of therespondents said that knowing aninnocent person may have beenexecuted has had no effect ontheir death penalty views.

Declining Use of theDeath Penalty

One of the apparent results ofthe declining confidence in thedeath penalty has been a dramaticdrop in death sentences over thepast six years. This poll indicatesthat part of the decline insentences may be due to lesswillingness to impose the deathpenalty because of the innocenceissue. Although those chosen toserve on a death penalty jury aremore conservative voters, eventhis group has been affected bythe news of exonerations. Ofthose who believed they qualifiedfor capital jury service, nearly 40%said they would be less likely tovote for a death sentence givenwhat they have heard aboutexonerations.

Death sentences averagedclose to 300 per year during the1990s. Since then, the number ofdeath sentences per year hasdropped about 60%. According to

the Bureau of Justice Statistics,there were 128 death sentences inthe country in 2005,12 and DPIChas determined that the numberof death sentences in 2006 waslower again, approximately 102,the lowest number of sentencessince the death penalty wasreinstated over 30 years ago.

Other indicators are consistentwith the decline in deathsentences. There were 98executions in the country in 1999.In 2006, there were 53 executions--47% fewer.13 That number willlikely decline further in 2007, withexecutions dropping into the 40sfor the first time in over a decade.The recent number of executionshas been directly affected by thecontroversy surrounding thelethal injection process. But evenif that problem should be resolvedand executions resume in greaternumbers, the decline in deathsentences will eventually meanthat the number of executions willlikely stay below that of the late1990s.

The size of death rowincreased every year from thereinstatement of the death penaltyin 1976 until 1999. Since then, thesize of death row has decreasedevery year, despite the fact thatfewer people are being executed.In many states, the death penaltyhas reached a virtual stalemate.Few people are sentenced todeath; even fewer, if any, areexecuted. Some cases areoverturned or inmates die of othercauses, leaving death row aboutthe same size. (The costs ofmaintaining this stagnant system,however, continue to mount.)


Life Without ParoleAmericans are nearly evenly

split when the death penalty iscompared with life without parole(LWOP) as a punishment formurder. In the most recent GallupPoll in 2006, 48% of the generalpopulation chose LWOP and 47%chose a death sentence, markingthe first time in 20 years of posingthis question that the Gallup Pollshowed the death penalty insecond place.14 In the poll for thisreport, 47% would choose thedeath penalty and 43% lifewithout parole (LWOP) as theproper sentence for first degreemurder. Many subgroups, suchas Democrats, women, AfricanAmericans, Hispanics, collegegraduates, and Catholicspreferred LWOP over the deathpenalty.

However, those who believethey would be qualified as capitaljurors were less moved by havingthe option of a life-without-parolesentence than they were by theinnocence issue. Only 37% saidhaving this choice would makethem less likely to vote for death.

Life without parole is arelatively new alternative inAmerican criminal sentencing.When the death penalty wasoverturned by the Supreme Courtin 1972, there were about 600people on death row. All of theirsentences were reduced to lifesentences and almost all of thembecame eligible for parole at somepoint.15 Today, 37 of the 38 deathpenalty states have a sentence oflife without parole for at leastsome defendants.16 Texas, theleading execution state, was themost recent state to adopt this

PUBLIC NOW EVENLY SPLIT ON DEATH PENALTY(Gallup Poll Results)

0

10

20

30

40

50

60

70

1985

1986

1991

1992

1993

1994

1997

1999

2000

2001

2002

2003

2004

2005

2006

YEARS

PER

CEN

T S

UP

PO

RT A

S P

UN

ISH

MEN

T F

OR

M

UR

DER

LWOPDeath Penalty


option for jurors, having done soin 2005.17 If the death penaltywere removed as a sentencetoday, many of the defendantswould still have to serve the restof their life in prison with nochance of parole. And for futuredefendants, that sentence wouldbe available for virtually all cases.

Pragmatic ProblemsCited by Those WhoSupport the DeathPenalty

Besides the possibility ofexecuting innocent people, whatother problems raise doubts in theminds of those who favor thedeath penalty? What factors mightweaken their support?Respondents who favored thedeath penalty were given a list offactors and asked which ones (if

proven true) would reduce their

support. Policy issues such as therarity of executions and high costsranked not far behind thepossibility of executing theinnocent. While 27% said that theexecution of innocent peoplewould lessen their support for thedeath penalty, 26% would besimilarly affected by the fact that"it takes too long to go throughthe whole appeals process indeath penalty cases and only afew of those sentenced to deathare actually executed." The highcosts of the death penalty werecited by 22% as lessening theirsupport. A similar 22% cited thefact that receiving the deathpenalty often depended on race,economics and geography. Only11% indicated that statementsfrom leaders in their religiousdenomination would have asimilar effect on their views.

The Costs of Innocence

Percentage Saying It Would Lessen Their Support of Death Penalty

0 5 10 15 20 25 30

Religious leaders opposition

LWOP

None of the reasons offered

Exonerations

High costs

Race, poverty, geography

Takes too long & few executed

Innocent people executed


The problem of innocence hashad a cascading effect on allaspects of the death penalty. Afterstudying the risks of sentencinginnocent people to death, manystates have introduced reforms.Although the quality of capitalrepresentation is still grosslyinadequate in many areas,18 somestates are requiring defensecounsel to meet higher standardsfor capital representation andother states have raised the feesavailable for such representation.Many states now allow DNAevidence to be tested andintroduced on appeal, despitebarriers to late-filed challenges indeath penalty cases. A few statesare requiring that pre-trialinterrogations of suspects berecorded to avoid abuses.19

Many of these changes arelong overdue, but one result couldbe that the costs of the deathpenalty will increase compared towhat they were when standardswere more lax. As executionsdecline and the costs for eachprosecution go up, the cost perexecution (including all the legaland custodial costs of all the casesin the death penalty system) hasbecome a concern in many states.In Florida, a 1988 study by theMiami Herald concluded that theextra costs associated with thedeath penalty amounted to $3.2million per execution.20 Sincethen, costs have increased andexecutions have slowed down. Asimilar study by the Palm BeachPost in 2000 found that the costper execution was now costingtaxpayers $24 million.21

Likewise in California, theSacramento Bee had estimated thatthe state was spending an extra$90 million per year on the deathpenalty, with no executions toshow for it.22 A more recent studyby the Los Angeles Times indicatedthat the costs were now more like$124 million per year. With anaverage of less than one executionevery two years, that meant thestate was paying $250 million perexecution.23

States like New York and NewJersey, where the death penalty isin suspension, spent enormoussums of money with noexecutions resulting. Hearings inNew York cited costs of over $160million over 7 years with no deathsentences carried out and no casesaffirmed on appeal.24 In NewJersey, the costs were about $250million over 22 years with noexecutions.25 In both states, sucheconomic concerns were cited invotes that have brought the deathpenalty to a halt.26

Prospects for theFuture

With the use of the deathpenalty declining and becomingmore isolated in a few states, andwith the costs of cases increasingand the time between sentencingand execution not getting anyshorter, it is not surprising thatthe majority of the public isconvinced that this governmentprogram needs to be halted andstudied to see if it is worthcontinuing. A significant majorityof 58% responding in this pollbelieved it was time for a


moratorium on the death penaltywhile the process undergoes acareful review.

Support for a moratorium waswidespread among subgroups:59% of southerners, 75% ofAfrican Americans, 68% ofHispanics, and 66% of Catholicssupported such a halt toexecutions. This support reflectsthe reality that in practice such amoratorium already exists inmuch of the country. Most stateswith the death penalty carried outno executions in 2006 or the first 5months of 2007. This year only ahandful of states have carried outan execution, and Texas, alone,has been responsible for two-thirds of all executions. Even inthe most active years of the deathpenalty, about 80% of theexecutions in the country havebeen in just one geographical area,the South. A national suspensionof executions would hardlychange the reality in most of the

country.

Executions this year have beenimpeded by the challenges to thelethal injection process. In elevenstates, stays of executions were inplace for many months, and thecontroversy over lethal injection isfar from being resolved.Although this debate was not theresult of a public outcry, a numberof states appear resigned to lettingit run its course. North Carolina,which temporarily arrived at acompromise that allowed someexecutions to go forward, hasreturned to a stand down positionand the governor has said thecourts should decide the issue.27

In other states like California,Maryland and Missouri, it alsoappears that executions willremain on hold for a considerableperiod while solutions areexplored. Florida, whichpreviously had resisted anychallenges to both its faulty

Support for a Halt to Executions: Generally and Subgroups

4%

38%

66%68%75%

58% 59%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

YES

South

erner

s

Afric

an A

mer

ican

s

Hispan

ics

Cathol

ics

NO

NOT SURE


electric chair and its lethalinjection process, voluntarilyhalted all executions late last year.Angel Diaz's execution inDecember 2006 took over 30minutes, with the drugs being atfirst injected into his musclesrather than his veins. A completesecond series of lethal drugs wasadministered after he writhed andspoke while on the gurney.Governor Jeb Bush immediatelydeclared a moratorium andappointed a study commission.The new governor, Charlie Crist,has continued the process.28

Weariness with theDeath Penalty

The lethal injection issue is notlikely to end the death penalty.By itself, it remains probably atemporary hurdle to moreexecutions. But this issue has notarisen in a vacuum. In the past sixyears, the American public hasseen the U.S. Supreme Court placefurther restrictions on the use ofthe death penalty.29 Some statecourts have also made theexecution of a defendantunpredictable, with stays due tolethal injection challenges andsentences overturned because ofinadequate representation. Manyfamily members of homicidevictims are realizing thataccepting a life sentence for adefendant gives them a far greaterchance of achieving a resolutionto the legal case than holding outfor a tenuous death sentence.

A weariness about the deathpenalty has emerged among someformer supporters of the deathpenalty. If it is not going to be

carried out in a short period oftime, if many cases are overturnedand then receive a life sentenceanyhow, and if the costs of thewhole process are getting out ofhand, then some have concludedthat it may not be worth the effort.In this poll, such sentimentsranked as high as innocence inlessening support of the deathpenalty among its proponents.

In 2006, New Jersey appointeda blue-ribbon commission tostudy the state's death penalty.The commission concluded by avote of 12-1 that the death penaltyshould be abolished. But it wasnot simply that the members weremorally opposed to capitalpunishment. Rather, their reportexamined statements fromvictims' advocates, such asRichard Pompelio, founder of theNew Jersey Crime Victims’ LawCenter and father of a murdervictim. According to thecommission's report:

He (Mr. Pompelio) testifiedthat the death penalty is thegreatest failing of the justicesystem in the State and that itre-victimizes victims. Hestated that the death penaltyshould be abolished in favor of

"I have absolutely no doubt thatthere will never be an execution inthe State of New Jersey. . . . Weare just sitting here playing withwords and playing withtaxpayers’ dollars."

-Richard Pompelio, New JerseyCrime Victims Law Center


life in prison without parole,and that the funds spent on thedeath penalty be used forservices for homicide victimsand funding for lawenforcement. "I haveabsolutely no doubt that therewill never be an execution inthe State of New Jersey. . . . Weare just sitting here playingwith words and playing withtaxpayers’ dollars."30

Some prosecutors have echoedthese sentiments. Samuel Milsap,former District Attorney of BexarCounty, Texas, said: "I've come tothe conclusion . . . that the systemas it relates to capital murder issimply broken. It's my view in factthat because it's driven by humanbeings and decisions that aremade by human beings, it can't befixed, and that as a result whathas to happen is that the option toput people to death has to end."31

His words were similar tothose of Justice Blackmun beforeretiring from the Supreme Courtin 1994. Blackmun had voted to

uphold the death penalty when itwas struck down in 1972, and hevoted in favor of itsconstitutionality when it wasreinstated in 1976. But years ofexposure to the way the deathpenalty worked in practice ledhim to withdraw even his legaljudgment that it should beallowed to continue:

In recent years, I havegrown increasingly skepticalthat 'the death penalty reallycan be imposed fairly and inaccordance with therequirements of the EighthAmendment,' given the nowlimited ability of the federalcourts to remedyconstitutional errors. . . . I ammore optimistic, though, thatthis Court eventually willconclude that the effort toeliminate arbitrariness whilepreserving fairness "in theinfliction of [death] is soplainly doomed to failure thatit--and the death penalty--must be abandonedaltogether."32

For Some, AConclusion That ItCannot Be Fixed

One reason that Americansbelieve a moratorium may beneeded is that they lackconfidence that the problems ofthe death penalty have been fixed.An overwhelming 69% of thepublic believes that the reformswill not eliminate all wrongfulconvictions and executions. Thissentiment is also reflected by

"I've come to the conclusion . . .that the system as it relates to capitalmurder is simply broken. It's myview in fact that because it's drivenby human beings and decisions thatare made by human beings, it can'tbe fixed, and that as a result whathas to happen is that the option toput people to death has to end."

- Samuel Milsap, former DistrictAttorney of Bexar County, Texas


major national newspapers whichformerly supported the deathpenalty for decades, but have nowchanged their positions.

The Chicago Tribune recentlypronounced that the revelationsabout innocence and otherproblems had shaken "thefoundation of support for capitalpunishment:"

One of the core tenets of thisnewspaper since its foundinghas been that the extraordinarypower of government must bewielded carefully and sparingly--particularly when that powerweighs on the life and liberty ofcitizens.

It has, as well, long been theposition of this editorial pagethat the government should havethe legal right to impose capitalpunishment--the death penalty.. . .

We have learned much,particularly with advances inDNA technology, about thecriminal justice system'scapacity to make terriblemistakes. These revelations--many stemming frominvestigations by thisnewspaper--shake thefoundation of support for capitalpunishment.. . .

The evidence of mistakes, theevidence of arbitrary decisions,the sobering knowledge thatgovernment can't providecertainty that the innocent willnot be put to death--all thatprompts this call for an end tocapital punishment. It is time tostop killing in the people'sname.33

Around the same time, theDallas Morning News shifted fromits long-term support for thedeath penalty because it had "lostconfidence that the state of Texascan guarantee that every inmate itexecutes is truly guilty ofmurder." The editorial boardwrote:

That is why we believe thestate of Texas should abandonthe death penalty – because wecannot reconcile the fact that itis both imperfect andirreversible.

This board has lost confidencethat the state of Texas canguarantee that every inmate itexecutes is truly guilty ofmurder. We do not believe thatany legal system devised byinherently flawed human beingscan determine with moralcertainty the guilt of everydefendant convicted of murder.. . .

The state holds in its handsthe power of life and death. It isan awesome power, one thatcitizens of a democracy must

This board has lost confidence thatthe state of Texas can guarantee thatevery inmate it executes is truly guiltyof murder. We do not believe that anylegal system devised by inherentlyflawed human beings can determinewith moral certainty the guilt of everydefendant convicted of murder.

-Dallas Morning News Editorial, April15, 2007, changing its position on thedeath penalty


approach in fear and trembling,and in full knowledge that thestate's justice system, likeeverything humanity touches, isfated to fall short of perfection. Ifwe are doomed to err in mattersof life and death, it is far betterto err on the side of caution. It isfar better to err on the side oflife. The state cannot imposedeath – an irrevocable sentence –with absolute certainty in allcases. Therefore the state shouldnot impose it at all.34

Other papers, such as TheSentinel of Pennsylvania, weremore succinct, simply calling thedeath penalty "useless."35 TheRocky Mountain News of Colorado

said that, in their state, "for allpractical purposes the penalty nolonger exists in any meaningfulsense at all," and hence it shouldbe taken off the books.36 The LosAngeles Times called on the statestudy commission to make adeath penalty moratorium its firstorder of business. The HoustonChronicle likewise advocated for aTexas moratorium. Nationalpapers such as the New YorkTimes, the Washington Post, andUSA Today have had long termeditorial positions against thedeath penalty.37

62%

12%

11%

9%

0 0.1 0.2 0.3 0.4 0.5 0.6 0.7

Innocent people aresentenced to death

Death penalty rarelycarried out

None of reasons given

Statements fromreligious leaders

Why Did You Change from Being a Supporter of the Death Penalty?


An Emerging TrendThe death penalty is deeply

ingrained in American historyand politics. In this poll, 62%supported the death penalty forpersons convicted of murder.Even with all that has beenrevealed about this practice inrecent years, the majority ofrespondents said that theirposition had not changed in thepast ten years. But among thosewho had shifted their position,more people became opponents ofthe death penalty thanproponents, by a margin of 3 to 2.And the overwhelming reasongiven by those who have changedfrom supporters to opponents ofthe death penalty was the issue ofinnocence: 62% of those whochanged to opposing the deathpenalty did so because of the riskthat innocent people could besentenced to death.

The problem of innocence canbe lessened but never completelyeliminated. The chance of humanerror will be present in theinvestigation of the crime, thetesting of evidence, in experttestimony, and in the opinions ofjurors and judges passingjudgment. When the formergovernor of Massachusetts, MittRomney, claimed to have devised

a mistake-proof death penalty, thestate legislature strongly rejectedhis proposal as unrealistic.38

The implications of therealization that the "innocenceproblem" cannot be fixed areprofound: there is less talk now ofeliminating appeals or cuttingback on defense services. Thedeath penalty for the foreseeablefuture will be time consuming,more expensive, and stillunpredictable.

The public is very aware ofthese developments and many arebecoming resigned to the fact that,in the long run, the death penaltyis unsustainable. Support for thedeath penalty drops to less than50% when compared with thesentence of life-without-parole.Capital punishment is seen as anoutmoded government policy thatno longer meets its intended uses.

Politicians may still continueto offer a patched-up deathpenalty as a panacea to thepublic's fear of crime. But ratherthan there being some light at theend of the tunnel after thirty yearsof experiment, the prospects for a"successful" death penalty seem tobe rapidly receding.

Poll SpecificationsRT Strategies of Washington, D.C., conducted this National Omnibus

Poll on March 8-11, 2007 for the Death Penalty Information Center. Thesample was 1,000 adults nationwide, and the margin of error was +3.1%.DPIC is a non-profit organization specializing in research and informationon capital punishment in the United States.


Endnotes 1 . Witherspoon v. Illinois, 391 U.S. 510, 519 (1968).2 . Trop v. Dulles, 356 U.S. 86, 101 (1958) (evolving standardsinterpretation of the Eighth Amendment).3 . Ring v. Arizona, 536 U.S. 584 (2002).4 . See Stuart Banner, The Death Penalty: An American History, 10 (HarvardUniv. Press 2002) ("the main purpose of the death penalty was conceivedto be its deterrent effect").5 . See Death Penalty Information Center's list of exonerations athttp://www.deathpenaltyinfo.org/article.php?scid=6&did=110, visitedMay 3, 2007.6 . See D. Fears, Exonerations Change How Justice System Builds a Prosecution:DNA Tests Have Cleared 200 Convicts, Washington Post, May 3, 2007, at A3.7 . C. Haney & D. Logan, “Broken Promise: The Supreme Court’s Responseto Social Science Research on Capital Punishment,” 50 Journal of SocialIssues 75, 91 (1994).8 . See, e.g., Charles A. Morgan III, M.D., Yale Medicine, Fall/Winter 2004,at p.9 (false eyewitness testimony); Symposium, Judicature, Journal of theAmerican Judicature Society, September-October, 2002 (issue devoted tocauses of wrongful convictions).9 . See National Coalition to Abolish the Death Penalty, Innocent andExecuted: Four Chapters in the Life of America's Death Penalty (2006).10 . Pew Forum on Religion and Public Life, Event Transcript, July 21, 2006,at <http://pewforum.org/events/index.php?EventID=122>.11 . See Editorial, Mistrust: Court's decision to leave a wrongful executioninquiry with a tainted DA clouds Texas justice, Houston Chronicle, Sept. 5,2006.12 . Bureau of Justice Statistics, Capital Punishment 2005 (U.S. Dept. ofJustice 2006).13 . See Death Penalty Information Center, The Death Penalty in 2006: YearEnd Report (2006).14 . See Gallup News Service, June 1, 2006 (press release).


15 . J. Marquart & J. Sorenson, A National Study of the Furman-CommutedInmates: Assessing the Threat to Society from Capital Offenders, 23 Loyola ofLos Angeles L. Rev. 5 (1989).16 . New Mexico is the only death penalty state that does not have a LWOPsentence.17 . Governor's Office, Press Release, "Governor Perry Signs Life WithoutParole Bill," June 17, 2005.18 . See, e.g., series on representation in 4 southern states, North CarolinaNews & Observer, January 20, 2007.19 . For a review of reforms that have been passed, see Campaign forCriminal Justice Reform athttp://www.thejusticeproject.org/state/legislation.html.20 . D. Von Drehle, Bottom Line: Life in Prison One-sixth as Expensive, TheMiami Herald, July 10, 1988, at 12A.21 . S. V. Date, The High Price of Killing Killers, Palm Beach Post, Jan. 4, 2000,at 1A.22 . S. Maganini, Closing Death Row Would Save State $90 Million a Year,Sacramento Bee, March 28, 1988, at 1.23 . See R. Tempest, Death Row Often Means a Long Life, Los Angeles Times,March 6, 2005.24 . Costly Price of Capital Punishment—Case Shows Effort Expended Before theState takes a Life, Albany Times-Union, Sept. 22, 2003 (over $160 millionspent in 7 years).25 . See Report: Death penalty cost $253M and executed no one in NJ, NewJersey Policy Perspectives report, Newsday, Nov. 21, 2005 ($253 millionspent since 1983).26 . See discussion of New Jersey Death Penalty Study Commission's reportin Associated Press, Jan. 2, 2007 (citing costs); see Press Release, New YorkState Assembly, "Assembly Releases Death Penalty Report," April 4, 2005(citing costs).27 . See A. Weigl, Execution impasse unlikely to end soon, News & Observer(North Carolina), April 6, 2007 ("'The legislature isn't going to be able tomove in any direction, really, until it gets some final ruling from thefederal and state courts,' Gov. Mike Easley said.").28 . See P. Davis, Panel: Crist should review death drugs, Associated Press,March 1, 2007 (discussing Florida Lethal Injection Commission Report).


29 . See, e.g., Atkins v. Virginia, 536 U.S. 304 (2002) (no death penalty forthe mentally retarded); Wiggins v. Smith, 539 U.S. 510 (2003) (requiringinvestigation of mitigating evidence); Roper v. Simmons, 543 U.S. 551(2005) (no death penalty for juveniles).30 . See New Jersey Death Penalty Study Commission Report (January2007) at http://www.njleg.state.nj.us/committees/njdeath_penalty.asp.31 . See Pew Forum on Religion and Public Life, note 10 above.32 . Callins v. Collins, 510 U.S. 1141 (1994) (Blackmun, J., dissenting fromdenial of cert.).33 . Editorial, Chicago Tribune, March 25, 2007.34 . Editorial, Dallas Morning News, April 15, 2007.35 . Editorial, The Sentinel (Pennsylvania), April 3, 2007.36 . Editorial, Rocky Mountain News (Colorado), Feb. 12, 2007.37 . See Death Penalty Information Center, Editorials Web page, athttp://www.deathpenaltyinfo.org/article.php?did=189&scid=43.38 . See S. Helman, Death penalty bill fails in House: Romney initiative roundlydefeated, Boston Globe, November 16, 2005.


Appendix A


Interviewing: March 8-11, 2007

Sample: 1,000 adults nationwide

Margin of error: + 3.1

822 registered voters nationwide

806 D Street SE, Washington, DC 20003 Ph: (202) 544-2550 Margin of error: + 3.4

RT Strategies National Omnibus PollThomas Riehle, Partner

Death Penalty Poll

All numbers represent percentages unless otherwise labeled.

DEMOGRAPHICS

DP-1. Do you (ROTATE:) favor or oppose the death penalty for persons convicted of murder?

Favor ................................................ 62Oppose............................................. 28 Not sure.......................................... 10

DP-2. Which penalty do you prefer for people convicted of murder, (ROTATE:) the deathpenalty, or life in prison with no chance of parole?

Death penalty ................................................. 47Life in prison with no chance of parole .......... 43 Not sure ........................................................ 10

DP-3. Do you have (ROTATE, START FROM BOTTOM EVERY OTHER INTERVIEW:)complete confidence, quite a bit of confidence, only some confidence, very littleconfidence, or no confidence at all that the criminal justice system always sentences onlyguilty people to death?

Total Complete/Quite A Bit................................... 39Total Only Some/Very Little/No Confidence ...... 59

Complete confidence............................................... 10Quite a bit of confidence.......................................... 29Only some confidence............................................. 31Very little confidence ............................................... 18No confidence at all ................................................. 10 Not sure.................................................................. 2

DP-4. As you may know, in recent years many people who had been convicted of murder andsentenced to death have been released from death row after new evidence, such as DNAtesting, shows they could not be guilty of the crime. They have been exonerated of allcharges. For example, so many people on death row in Illinois were found to be not guilty


that the state put a moratorium on carrying out the death penalty until the problem couldbe thoroughly investigated. Having heard that, which ONE of the following comesCLOSEST to describing your opinion about the death penalty: (ROTATE, START FROMBOTTOM EVERY OTHER INTERVIEW:)

I support the death penalty, but hearing thismakes me feel less strongly in favor of it................ 32Hearing this does not affect my opinion of thedeath penalty ........................................................... 37I oppose the death penalty, and hearing thismakes me feel more strongly opposed to it............ 28 Not sure.................................................................. 3

Initial Favor Death Penalty Favor death penalty and hearing this does not affect myopinion ......................................................................................... 28 Favor death penalty but hearing this makes me feel lessstrongly in favor of it .................................................................. 28Initial Oppose Death Penalty Oppose death penalty and hearing this does not affect myopinion ........................................................................................ 5 Oppose death penalty and hearing this makes me feel morestrongly opposed ........................................................................ 21Other/not sure 18

DP-5. As you may know, in the court cases where the death penalty is one possiblepunishment, most courts require jurors to say they do NOT have a moral objection toimposing the death penalty if the evidence supports it, in order to qualify as a juror in adeath penalty case. Someone who has a moral objection to the death penalty in all caseswould be excluded from a jury in a death penalty case. Suppose you were in the jury poolfor a death penalty case, would you qualify on those grounds, or would you be disqualifiedbecause you have a moral objection to the death penalty?

Would qualify.................................................................. 57Would be disqualified because of moral objection ....... 39 Not sure........................................................................ 3

(ROTATE ORDER OF QUESTIONS DP-6a and DP-6b.)(ASKED ONLY OF THOSE WHO SAY THEY QUALIFY AS A JUROR IN A DEATH PENALTY

CASE.)DP-6a. Would having heard that in many recent cases, juries have incorrectly sentenced people

to death who were subsequently found to be not guilty and released from death row:(ROTATE, START FROM BOTTOM EVERY OTHER INTERVIEW:)

Make you much less likely to vote for the death penalty............................ 6Make you somewhat less likely to vote for the death penalty.................... 16Make no difference in your willingness to impose the death penalty......... 33(Disqualified, Morally opposed to the death penalty from DP5.) ........ 43 Not sure...................................................................................................... 2

(ASKED ONLY OF THOSE WHO SAY THEY QUALIFY AS A JUROR IN A DEATH PENALTYCASE.)


DP-6b. In most states, jurors have the option of imposing as a sentence either (ROTATE:) the

death penalty, or life in prison without any possibility of parole. Would having the option ofsentencing a convicted person to life in prison without any possibility of parole: (ROTATE,START FROM BOTTOM EVERY OTHER INTERVIEW:)

Make you much less likely to vote for the death penalty............................ 7Make you somewhat less likely to vote for the death penalty.................... 15Make no difference in your willingness to impose the death penalty......... 32(Disqualified, Morally opposed to the death penalty from DP5.) ........ 43 Not sure...................................................................................................... 3

(ASK EVERYONE.)DP-7. Should cases in which the prosecutor seeks the death penalty on conviction require a

higher degree of proof that the defendant is guilty than other criminal cases where thedeath penalty is not an option?

Yes........................................... 75No ............................................ 20 Not sure ................................. 5

DP-8. Do you think there is a (ROTATE, START FROM BOTTOM EVERY OTHERINTERVIEW:) good chance, some chance, or no real chance that at least one innocentdefendant or more has actually been put to death in error over the past 15 years or so?(IF GOOD/SOME CHANCE, ASK:) As a result of that, which ONE of the following comesCLOSEST to describing your opinion about the death penalty: (ROTATE, START ATTHE BOTTOM EVERY OTHER INTERVIEW:)

Total Good/Some Chance................................................................... 87

I support the death penalty, but knowing there is a (good/somechance) an innocent defendant has been put to death in errormakes me feel less strongly in favor of it.............................................. 29Knowing there is a (good/some chance) an innocent defendanthas been put to death in error, this does not affect my opinion ofthe death penalty ................................................................................... 31I oppose the death penalty, and knowing there is a (good/somechance) an innocent defendant has been put to death in errormakes me feel more strongly opposed to it.......................................... 26No real chance ..................................................................................... 9 Not sure .............................................................................................. 4

(ASKED ONLY OF THOSE WHO SAY THEY SUPPORT THE DEATH PENALTY IN Q.DP-1.)

DP-9. I will read you a list of reasons people might give for OPPOSING the death penalty, and Iwill read the list twice. At the end, tell me which statements, if proven true, would makeyou less strongly in favor of the death penalty? (ACCEPT AS MANY AS APPLY.PROBE FOR MORE ANSWERS.) (RANDOMIZE ORDER:)

The death penalty is shown to be much more costlyto taxpayers than the cost of keeping people inprison for life without any possibility of parole .............. 22It is shown that today, prisoners with life sentencesare never given a chance of ever being paroled .......... 12100 prisoners on death row waiting for executionshave been cleared of all charges and freed overthe past 25 years ........................................................... 21


5 defendants who were executed under the deathpenalty over the past 15 years have been shownby evidence to have been actually innocent................. 27Leaders of your religious denomination speak outstrongly for abolishing the death penalty ...................... 11It is shown that the death penalty is unfair, becauseoften it is factors such as race, poverty orgeography that determine why one person is giventhe death penalty and another is not............................. 22It takes too long to go through the whole appealsprocess in death penalty cases and only a few ofthose sentenced to death are actually executed .......... 26None of the above ......................................................... 19 Not sure........................................................................ 5

DP-10. Which ONE of the following has been the MOST SIGNIFICANT change regarding thedeath penalty in recent years? (RANDOMIZE:)

The Supreme Court ruling that juvenile defendants must beexempt from the death penalty ..................................................... 8The official opposition of the Catholic Church and otherreligious groups to the death penalty ........................................... 5The improvements in DNA testing that have led to evidencethat some death row inmates are innocent .................................. 69The emergence of “life without any possibility of parole” asan alternative to the death sentence in death penalty cases ...... 12 Not sure ....................................................................................... 6

DP-11. Do you think the prospect of receiving the death penalty is likely to prevent potentialmurderers from committing murder?

Yes........................................... 38No ............................................ 60 Not sure ................................. 2

DP-12. From what you have heard about mistakes in the criminal justice system, do you believethere is a (START FROM BOTTOM EVERY OTHER INTERVIEW.)

Total Near Certain/Moderately Good Chance .......... 51Total Minimal/Almost No Chance.............................. 48

A near certain chance an innocent person will beexecuted in the future.................................................... 19A moderately good chance............................................ 32A minimal chance .......................................................... 36Almost no chance at all that an innocent person willbe executed in the future............................................... 12 Not sure........................................................................ 1

DP-13. Would you support a national halt to all death penalty executions while the problems thatlead to wrongful convictions and wrongful death sentences are thoroughly investigated bya blue-ribbon commission?


Yes........................................... 58No ............................................ 38 Not sure ................................. 4

DP-14. Some states are considering reforms such as requiring better legal representation fordefendants in death penalty cases. Thinking about what we have discussed about thenumber of people who have been wrongfully convicted and sentenced to death in recentyears, do you think that reforms will totally eliminate wrongful convictions and wrongfuldeath sentences?

Yes........................................... 26No ............................................ 69 Not sure ................................. 5

DP-15. I am going to read you a list of reasons people give for opposing the death penalty, and Iwill read the list twice. Regardless of whether you favor the death penalty or not, which ofthe following, if proven true, would be the MOST VALID reason for opposing the deathpenalty?

Racial bias affects who is sentenced to death andwho is not....................................................................... 13Inexperienced lawyers represent many people whoface the death penalty if convicted................................ 22Innocent people are sometimes sentenced to death ... 32Within any state, the county where the crimeoccurs strongly affects whether the prosecutor willseek the death penalty or not........................................ 6The cost of death penalty, with all the special rulesand appeals required, costs far more than a systemthat uses only sentences of life without anypossibility of parole ........................................................ 16 Not sure........................................................................ 11

DP-16. Has your opinion about the death penalty changed over the past ten years?

Yes, I used to oppose the deathpenalty, but now I support it...................... 8Yes, I used to support the deathpenalty, but now I oppose it ...................... 12No shift....................................................... 76 Not sure ................................................... 4

(ASKED ONLY OF THOSE WHO SAY THEY SUPPORTED, BUT NOW OPPOSE THEDEATH PENALTY IN Q.DP-16.)DP-17. If you changed from being a supporter of the death penalty to an opponent, which of the

following contributed the most to your change in opinion?

Statements about the death penalty from religious leaders................. 9Evidence that innocent people are sometimes sentenced to death .... 62


The availability of life without parole sentences are evidence thatthe death sentences are rarely applied, frequently overturned,and take a long time to carry out........................................................... 12None of the above ................................................................................. 11 Not sure................................................................................................ 6

DEMOGRAPHICS

NOTE: Results for demographic questions represent all adults unless otherwise indicated.

Finally, just a few questions for statistical purposes only:

D1. Are you currently registered to vote at this address, or not?

ALLADULTS

Yes, registered at this address ................................... 82(VOL) Do not need to register in order to vote.......... 1No, not registered at this address............................... 17 Not sure/ refused....................................................... 1 Total Registered/ No need to register .................. 82

D2. (ASK ONLY REGISTERED VOTERS.) In national politics do you consider yourself(RANDOMIZE:) a Democrat, a Republican, an Independent, or none of these? (IFDEMOCRAT/REPUBLICAN ASK:) Do you consider yourself strongly(Democratic/Republican) or only moderately (Democratic/Republican). (IFINDEPENDENT/NONE OF THESE, ASK:) Do lean more toward the (ROTATE:) Democratic orRepublican Party?

REGISTEREDVOTERS

Republican .............................................. 29Independent ............................................ 31Democrat ................................................. 32Republicans with leaners......................... 39Democrats with leaners 44Strongly Republican................................. 13Moderately Republican ............................ 16Independent/neither/lean Republican...... 9Independent/neither/do not lean.............. 10Independent/neither/lean Democrat ........ 12Moderately Democrat............................... 16Strongly Democrat ................................... 17 Refused/not sure.................................... 8

D4. Into which of the following categories does your age fall?

18-29................................. 1830-34................................. 10


35-39................................. 940-44................................. 1145-49................................. 1050-54................................. 955-59................................. 760-64................................. 765 and older ..................... 18 Refused/not sure............ 1Mean................................. 46.5

D5. What is the last year of school you completed?

High School or less ..................................................... 33Some college................................................................ 31College Graduate ......................................................... 34Grade school or some high school................................ 8Graduated high school................................................... 25Some community college or university but did notfinish ............................................................................... 18Graduated from a community college, technical orvocational school or two-year college degree............... 14Completed a four-year college or university degree..... 23Completed post-graduate degree, such as aMaster’s or Ph.D or professional school such aslaw or medicine. ............................................................. 11 Refused/not sure.......................................................... 1

D7. How important is religion in your daily life?

Total Extremely/Very Important ............ 62Total Somewhat/Not Too Important...... 37

Extremely important .................................. 28Very important ........................................... 34Somewhat important ................................. 22Not too important....................................... 7Not important at all .................................... 8 Not sure ................................................... 1

D8a. Would you describe yourself as a born again or evangelical Christian or not?

Yes.................................... 36No ..................................... 61 Refused/not sure............ 3

D8b. What is your religious preference? Is it Protestant, Catholic, Mormon, Jewish,Muslim, some other religion, or don’t you belong to any religious denomination?

(IF “SOME OTHER RELIGION,” ASK:) Is that a Christian denomination, or not? (IFYES, CODED AS “PROTESTANT.”)

Protestant ......................... 33Catholic............................. 25Mormon ............................ 3Jewish............................... 2Muslim .............................. 1


Some other religion.......... 16None of these ................... 19 Refused/not sure............ 2

(ASKED OF ALL RESPONDENTS.)D9. Are you of Hispanic ethnicity? (IF NOT HISPANIC, ASK:) Is your ethnicity white, black,

Asian, or some other race?

(RESULTS SHOWN IN SUMMARY BELOW.)

White................................. 78Black ................................. 10Hispanic ............................ 9Asian ................................. 1American Indian................ *Other ................................. 1(VOL) Mixed ..................... * Refused .......................... 1

D10. Could you please tell me your household income from all sources in 2006?

(ASK ONLY IF RESPONDENT DOES NOT VOLUNTEER INCOME.)

Is that (ROTATE:) above or below $50,000? (IF BELOW $50,000, ASK:) Is that(ROTATE:) above or below $25,000? (IF ABOVE $50,000, ASK:) Is that (ROTATE:)above or below $75,000? (IF ABOVE $75,000:) Is that (ROTATE:) above or below$100,000?

Under $25,000 ................................. 16$25,000 to less than $50,000 .......... 22$50,000 to less than $75,000 .......... 17$75,000 to less than $100,000........ 10$100,000 or more............................. 14 Refused/not sure............................ 21

REGION:

New England..................... 5NORTHEAST Mid Atlantic States............ 16

Great Lakes ...................... 13MIDWEST Farm Belt........................... 8Deep South ....................... 15SOUTH Outer South....................... 20Mountain ........................... 10WEST Pacific................................ 13

METROPOLITAN STATUS:

Urban................................ 32Suburban .......................... 48Rural ................................. 20


GENDER:

Male .................................. 48Female.............................. 52

a crisis of confidence: americans' doubts about the … · and that a moratorium should be ......

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