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The death penalty is dying. Here's what that means for the criminal justice system.

Lawyers, not lawmakers, are killing the death penalty. There’s a critical lesson there.

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What’s the point of the death penalty? Is it about deterring crime or bringing a measure of peace to victims? Is it about vengeance or justice?

In this interview, Brandon Garrett, a law professor at the University of Virginia and the author of a new book on the subject, explores these questions, but also makes a broader claim: that defense lawyers are helping to gradually abolish the death penalty, and that we can improve the entire criminal justice system if we understand why.

Our conversation, lightly edited for clarity, follows.


Sean Illing

In the 1990s, we had 300 to 350 death sentences a year. In 2016, we had just 31. That’s roughly a 90 percent decrease. What accounts for that?

Brandon Garrett

Death sentencing isn’t just declining; it’s dropped to almost nothing. There are a few explanations. One is that homicide rates have declined. The second is that the resources for the defense to put on a case at trial have improved. The third is that the entrenched practices of prosecutors have eroded over time, in part because defense lawyers are winning more. So death penalty cases have gotten harder and more expensive for the state to prosecute.

Sean Illing

Racism is also a huge part of this story, right? [Read this 2016 Vox report on racial discrimination in the justice system for more context.]

Brandon Garrett

Absolutely. The data showed pretty clearly that death sentencing correlated to murders with white victims, and so as homicide rates among white victims have dropped, so too have death sentence convictions.

Sean Illing

This book is not really about why we should end the death penalty but rather about why the end of the death penalty will improve the broader criminal justice system. Can you sum up your argument?

Brandon Garrett

This book is about what the death penalty is doing to itself, and what we can learn from that. The death penalty is dying and it’s not because the courts or lawmakers have killed it. It's been the people and the hard work of lawyers on the ground. I think the death penalty is fading away because it doesn't work.

So now I think we need to start pulling the same levers that have been so important in the death penalty world, and take what worked there and apply it to regular criminal cases.

Sean Illing

What does that mean exactly?

Brandon Garrett

For instance, jurors, when they hear about mental health evidence and social history, think differently about the worst murders in this country. In cases that aren't death penalty cases, however, jurors don't have that opportunity because of the nature of lower criminal trials and mandatory sentencing laws. We have people sentenced to life without parole, without the same opportunity to have their life stories and their mental illnesses or disabilities heard or understood in a court of law. People with traumatic brain injuries or severe mental illnesses have to be judged with these things in mind if we are to have any comprehension of what they did and why they did it.

We have people in our jails across the country who aren't even screened for mental health problems, much less given treatment. Now that we’re having this broader discussion about how to reduce mass incarceration, we should also be talking about who we should be treating and not just punishing. And I think the death penalty offers some important lessons on how we can think about criminal punishment differently, on how we can consider people as individuals.

If we can consider even murderers as individuals, we can certainly do the same for less serious crimes.

Sean Illing

You said a minute ago that the death penalty doesn’t work, and we should clarify why that is. My understanding is that the death penalty doesn’t deter crime, has never deterred crime, which means it’s primarily about vengeance, not justice.

Brandon Garrett

We’ve never had any evidence that the death penalty deters crime. The rise of death sentencing in the 1970s accompanied a larger turn in criminal justice policy in the United States, where people became more skeptical of rehabilitation as a goal, and they basically threw rehabilitation out the window and replaced it with retribution.

Lawmakers and prison officials all decided that the purpose of criminal sanctions, the purpose of prison, is to punish, and we're not going to even try to rehabilitate anymore, which essentially meant that they didn’t care about deterring crime anymore. It was just about imposing a rote punishment.

So no, the death penalty doesn’t work if the goal of the justice system is to deter crime. But if the goal is merely to punish without any concern for preventing crime, then it works just fine.

Sean Illing

One thing I gleaned from your book is that a big problem in our justice system, from death penalty cases on down, is shoddy lawyering. Death sentences are dropping in part because of better lawyering, and that’s obviously a lesson for the wider justice system.

Brandon Garrett

That’s right. One pricier solution I suggest in the book is to give other types of criminal defendants the same kind of team that you get in a death penalty case, and the same opportunity to present mitigation evidence. It would certainly make sense to do that in life without parole cases. Death sentencing is at a record low in this country, but life sentences are at a record high. It's not like we have some crime wave that explains why we have 10 times more people serving life without parole in this country.

Life sentences are taking up more than 10 percent of our prisons, and so we have to confront these life without parole sentences if we are going to do something about incarceration in this country. Providing similar resources in those cases makes sense, because if you are going to put someone away for the rest of their life, without any chance of parole, that really should be someone who is incapable of any kind of rehabilitation.

For other types of criminal cases, it may not make sense to provide a full defense team, but we have public defenders offices that don't have the resources to do basic investigatory work, much less mental health screening. That has to change.

Sean Illing

Do we have any idea how many innocent people have been executed in this country?

Brandon Garrett

We don't. We know that large numbers of people have been exonerated from death row, including 20 based on DNA testing, and over 120 additional people exonerated based on other evidence. We know, based on that large body of exonerations, what rate there is of death row innocence. Researchers have estimated that there is more than a 4 percent rate in death penalty cases. And we also know that it's not like this happens in any one particular state or any one county. The states that have the most death sentences have the most exonerations.

Sean Illing

So 4 percent of people sentenced to death are later proven innocent?

Brandon Garrett

Yes.

Sean Illing

Is there something particular to murder cases that lends itself to wrongful convictions?

Brandon Garrett

One feature of murder investigations is that they can be quite hard to solve. Some murderers are caught in the act, but often you have a murdered victim who is the only person who saw what happened. You may some forensic evidence, but unless there's DNA or some unusual forensic evidence, you may be relying on circumstantial evidence, some kind of a confession statement, to solve the most serious crime imaginable.

And there's enormous pressure to close murder cases, to reassure the community that a murderer has been brought to justice, but there may not be any good leads for the police to go on, and that provides a recipe for wrongful convictions.

Sean Illing

What does America’s criminal justice system look like post death penalty?

Brandon Garrett

If we don't learn from some of the lessons of the death penalty decline, then our justice system might actually be somewhat worse. We have all these important constitutional protections and practical protections to provide better representation, and to create more attention in death penalty cases. We have more exonerations in death penalty cases. We have better litigation of mental health evidence in death penalty cases. Unless we provide those resources and move them to other types of cases, that attention will be lost.

On the flip side, the death penalty has always stood for retribution in this country. The death penalty has largely existed as a symbol for how we can exact the ultimate punishment on criminals. But with the death penalty off the books, I think that sends a message that we are no longer a society that focuses exclusively on retribution. And it helps to open up a space to talk about what the right answer is for punishing criminals.

Sean Illing

This principal of retribution is baked into our entire philosophy of justice in this country. It’s hard to imagine what it would look like without it.

Brandon Garrett

Retribution absolutely defines criminal justice in this country, but it’s important to remember that it wasn’t always this way. It wasn’t until the 1970s that this become the essential feature. We weren't always world leaders in incarceration. We didn't always have the toughest and most severe sentences in the world. Very few states had life without parole, in any modern sense, before the 1970s. This whole tough on crime era is decades long, but it's new to us.

The United States, since colonial times, was known for adopting enlightenment principles that criminal punishment is wrong, that retribution is medieval and wrong. We were always more lenient in our attitudes toward criminal punishment, and saw ourselves as being more advanced than these punitive European societies. So it's kind of remarkable that we’ve completely reversed this is in the span of a few decades.

My hope is that we’re going back to where we started, as an imperfect but comparatively enlightened country. If we can do it in the area of the death penalty in the space of 15 years, then we can do anything.