Jurisprudence

Is the Tide Finally Turning on the Death Penalty?

The momentum gained at the state level might be enough to break through on the federal level.

California Gov. Gavin Newsom speaks during a news conference at the California State Capitol on March 13.
California Gov. Gavin Newsom speaks during a news conference at the California State Capitol on March 13.
Justin Sullivan/Getty Images

As recently as three years ago, California voters rejected a ballot measure to end the death penalty, but earlier this month California Gov. Gavin Newsom announced he was ordering a moratorium on executions in the largest state in the country.* Newsom’s order would offer a reprieve to the state’s 737 death row inmates, making it a landmark day in the history of death penalty abolition in this country.

This is just one event in the quiet revolution against the death penalty that is happening across the country, says Cassy Stubbs, director of the ACLU’s Capital Punishment Project. The governor in Colorado, which already has an effective moratorium in place, has been pushing legislators to make a permanent decision about the state’s death penalty before 2021. In New Hampshire, the state Senate is due to vote on a measure abolishing the death penalty that already passed the House by a veto-proof majority. In Ohio, Republican Gov. Mike DeWine put an effective halt to the state’s death sentences earlier this year. It’s all part of a nationwide trend that Stubbs sees as altering the landscape of the death penalty in this country in a way that has not happened in decades. I spoke with Stubbs last week about these events and how the case for abolition is playing out in courts and statehouses throughout the United States. The conversation has been condensed for length and clarity.

Jeremy Stahl: What background do you think is important for people to understand about Newsom’s announcement and the broader picture surrounding the death penalty in the United States?

Cassy Stubbs: This year feels like a turning point for the death penalty. Last year, obviously, Washington abolished the death penalty. That was a big victory. But I think what’s kind of unique right now is that we see a lot of different camps moving in the same direction at the same time. For example, there’s the pope coming out with the strongest statement in history about the death penalty and the church’s view of the death penalty. We see there are conservative groups that are really becoming concerned about the death penalty from a religious and moral perspective—and also from cost—while at the same time you have the Democratic Party announcing that [abolition is] part of their platform.

Kamala Harris just talked about how the death penalty is never appropriate in any case in her view. Newsom just issued that powerful defense about why we can no longer stand behind the death penalty and it is morally incumbent on us to break from this when it’s been shown to be so racially biased and inherently discriminatory and unfairly applied. This kind of full-spectrum attack on the death penalty is just reaching a noise level that, to me, at least it feels very different than I’ve seen in over a decade, in terms of a critical mass of voices.

There was [also] kind of a trajectory [where] we saw a number of governors do things that were good on the death penalty, like issue stays or moratoriums or commutations, and then survive political attacks. We saw that the electorate was no longer voting on the death penalty. There was not the kind of backlash against folks who came out saying “we need death penalty reform” that we had seen in the 1980s. That was the first stage. Now, we’re really in this new phase where we see people both from the right and the left aggressively promoting death penalty repeal.

Who are you thinking of when you talk about recent politicians who have not necessarily faced a backlash?

We saw the governor of Colorado [John Hickenlooper] was targeted around the death penalty and was re-elected [in 2014], despite his granting of reprieves on the death penalty and despite [an effective] moratorium on the death penalty in Colorado. We saw in Oregon, Gov. Kate Brown was re-elected [last year] with a moratorium on the death penalty. We saw in Kansas, the Kansas state judges had been very robust in their review and had appropriately overturned death sentences that [we believe] violated the U.S. Constitution on a pretty regular basis, and they got attacked for that and they survived those challenges. We saw it in the Washington state Supreme Court, which [last year] wrote this really sweeping opinion finding racial bias in the application of the death penalty under the Washington state Constitution. They issued that opinion right before the judicial elections, which in the lore of litigator strategy, you’d never expect a state court to issue a big decision right before judicial elections. There’s no backlash.

What are some of the states where you see potential for the next big moves on this issue?

Ohio is another example where there has been this legal injection litigation for some time that has been really bogged down in questions of whether or not the defendant has shown and proposed a better way—a less painful way—of killing himself. A lot of the lethal injection litigation has lost sight of the fact that there’s this enormous compelling record that we are carrying out executions with a drug, midazolam, that is in fact leading to torture of prisoners in a number of states. We just saw the [Republican] governor of Ohio [Mike DeWine] say, we’re not going to do this.

We have this huge [death] row in California, a row that I think is so much bigger than any other row in the country. So [Newsom’s] announcement all alone would be a major development in the history of the death penalty in America. But the fact is that it’s happening at the same time you have a state like Ohio moving forward with a moratorium, and you have a state like Pennsylvania that’s got a large [death] row [moving ahead] with a moratorium.

You’re talking a lot about state-level action. Is that because action at the federal level is such a heavy lift? For advocates of abolition, it seems to me that recent decisions from the Supreme Court may not have been so inspiring. I’m talking about that recent case before the Supreme Court, where the court let Domineque Ray be executed in Alabama despite being denied access to his imam, and the court deciding not to rule on the religious discrimination question there.

There is a lot of movement in states and by state executives and state courts, and I think that’s in part because we haven’t seen enough movement from the U.S. Supreme Court yet. But that does not mean that I am in any way giving up on federal courts, or giving up on the U.S. Supreme Court abolishing the death penalty. I do think that is coming.

The Jones case was this case out of California where the federal district court found the death penalty in California unconstitutional because of the incredibly broken nature of California’s death penalty and the delays there—it’s just absolutely arbitrary who might get executed in California. At the same time, there was a federal court in New Hampshire that ruled the death penalty unconstitutional a number of years ago. Those cases ultimately did not stand, but the merits of those cases did not actually reach the Supreme Court.

I think that when you look at the benchmarks that the Supreme Court has set forward for whether or not the death penalty today is constitutional under the Eighth Amendment, the evolving standard of decency says let’s look at what’s happening in the states. Let’s look at the number of executions, let’s look at the trends, let’s look at the new death sentences. All of those are moving in the same direction. It is just an incredible downward-sloping number.

We certainly would not have predicted where we are today in terms of the low number of new death sentences, the low number of executions each year. There is an incredible showing, I think, under the Eighth Amendment, and it is just a matter of time before the Supreme Court is going to take one of these cases.

I think if you look at the Supreme Court’s record, it has issued a number of opinions where we’ve seen that it is concerned about some of these same things that Newsom was talking about, some of these same things that the Washington state Supreme Court was talking about.

Now, we were very dismayed, and I would not ever defend the Supreme Court’s allowing Ray’s execution to go forward. I think that that was a coming together of some of the worst ways in which the death penalty plays out, including the fact that, because of the way that Supreme Court rules work under [deadline] of an execution, it’s very difficult to get a claim heard that you would otherwise normally get heard. So they had enough votes to hear the briefing and make a reasoned decision on the merits of the religious discrimination that was going on in that case, but they didn’t have enough votes to stop the execution because of the way the state rule works. Time and time again, super important legal issues don’t get a real hearing because the push for finality and moving to execution just ends up outweighing decency and justice. So that was really a setback, and discouraging, but I think that we’ve seen from this court over the years—even though they rule against a claim that is brought on the eve of execution, that doesn’t tell you how they would rule on the merits of the claim.

Correction, March 28, 2019: An earlier version of this article misstated the timing of Newsom’s announcement. It was earlier this month, not two weeks ago.