Thursday, 15 May 2008

'Innocence' argument dramatically changed death penalty public support, policy

May 15 2008, 10:47 AM EST

Contact: Vicki Fong
Penn State

University Park, Pa. -- The recent execution of a convicted murderer in Georgia and a Supreme Court ruling upholding the constitutionality of a form of lethal injection have prompted fears of a rush to executions nationwide. But American public support for the death penalty has fallen dramatically over the last 20 years shaped by a unique set of forces, and a new book by Penn State researchers examines the factors behind the transformation.

"The Decline of the Death Penalty and the Discovery of Innocence," published by Cambridge University Press, provides statistical analysis of data documenting the historic shifts in public opinion and of the sharp decline in the use of the death penalty by juries across the country.

"Since 1996, death sentences in American have declined more than 60 percent, reversing a generation-long trend toward greater acceptance of capital punishment," said co-author Frank Baumgartner, the Miller-LaVigne Professor of Political Science. "In theory, most Americans continue to support the death penalty for the truly guilty, but the discovery of innocence has been documented through innocence projects conducted by law schools and journalism programs and the resulting media coverage. Also, the use of DNA evidence in clearing some of the convicted and heard in popular TV shows and movies has helped the public understand the new vocabulary."

"The innocence argument has reframed the thinking of many Americans who might support the death penalty in theory due to a moral code or a religious tradition that supports an 'eye for an eye' rather than forgiveness and redemption, but they would recoil from possibly executing someone who might be innocent of the crime," said co-author Amber Boydstun, a graduate student who will receive her Ph.D. in political science from Penn State this summer and will be teaching at University of California Davis this fall.

"As attention focuses on the new innocence argument, several other familiar arguments such as racial bias have gained ground as well," she added. "The new 'innocence' frame has moved public discussion away from morality and religion, where people are least prone to persuasion, and to the idea that the death penalty is a bureaucratic process that is extremely costly and inefficient, that has expensive and unpopular solutions, and that may have executed some innocent people in the past."

Capital punishment in America peaked in 1935 at nearly 200, declining until 1968 where there were no executions, staying at that level until 1976. From 1977 to 1996, there was a steady increase in the number of executions due to a "tough on crime" approach heard in public opinion and discussions, and public policy, according to the book.

In relation, the number of death sentences in America also has declined steadily from a peak of 326 in 1995 to 110 in 2007, according to the Death Penalty Information Center. A Columbia Law School study in 2000 found that over 60 percent of all death sentences are overturned when reviewed by a federal judge. There have been 124 exonerations between 1973 and 2007, mostly due to trial errors or prosecutors' misconduct, and only 15 of them due to new DNA evidence.

"If the U.S. Postal Service failed to deliver even 1 percent of the billions of pieces of mail it delivers each year, or if the Social Security Administration erred the same percentage of its monthly checks, Americans would be outraged," said Baumgartner. "Our entire system of government is based on the idea that man is imperfect and other actors in the political system must act as checks and balances on the others. Yet, attention to the possibility of error has been virtually absent in the debate until recently."

In the book, authors Baumgartner, Boydstun and Suzanna De Boef, professor of political science at Penn State, published an intensive analysis of the New York Times stories on capital punishment or the death penalty from 1960 to 2006, almost 4000 stories in all. The analysis found that the number of death sentences resulted from a combination of factors: previous year's death sentence total, public opinion, the tone of the media coverage, and the number of homicides.

The researchers developed new methods to measure and analyze data that show how issues are defined and framed by media and advocates, and then how the change affects overall public opinion and actual policies themselves. Boydstun started the data collection and coding work on this project as a new graduate student at Penn State, although her master's thesis and Ph.D. dissertation have expanded to the influence of issue definitions and re-definitions on media agenda and its impact on public policy.

The continued decrease in public support is even more striking in the post-Sept. 11, 2001 era with the war on terror, heightened security, reduced civil/private rights philosophy and a rise in evangelical religious denominations in American society. As Governor of Texas, George W. Bush oversaw more executions than any single person in American history, but the numbers of executions have steadily declined throughout his term in the White House. In 2007, New Jersey was the first state to rescind capital punishment through legislative action.

The book notes that only five states comprise the bulk of executions: Texas, Virginia, Oklahoma, Missouri and Florida. The typical state has executed just three individuals over 30 years and many states have executed none. Further, the book notes that geographical disparities in the use of executions have become starker in recent years. Houstons Harris County has executed over 100 individuals, more than any other state besides Texas. Dallas, by contrast, makes rare use of the penalty.

The Supreme Courts recent ruling that Kentuckys lethal injection protocol was constitutional suggests that executions will likely return. However, the authors of the book suggest that we are unlikely to see a surge of executions to levels more common 20 years ago. It remains extremely costly; life sentences without the possibility of parole are now available in every state with capital punishment; and people are wary of the possibility of mistakes, a concern that until recently was virtually absent from the study of capital punishment.

"This study of capital punishment support illustrates that policy change can occur in either direction -- from the public and media to the policymakers -- or vice versa," Boydstun and Baumgartner said. "Every policy issue has many dimensions, several ways of framing the idea, and many advocates for and against it. However, such a dramatic and unlikely reversal of public support and policy in just a decade is rare. Death row inmates are the least sympathetic figures, and there have always been claims of innocence.

"However, the reframing of the issue has raised the question: what level of error is acceptable in the justice system, particularly with the death penalty being irretrievable?" the researchers noted. "Popular culture has kept the question alive in stories about crime labs, police actions and exonerations, and people have been shocked to see evidence that the justice system may have more in common with FEMA than with any past assumptions about an error-free justice system."

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