Will Juries Kill the Death Penalty?

by Matt Kelley · 2009-12-01 07:17:00 UTC
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A couple of interesting posts this week examine the public’s response to the possibility of executing an innocent man -- and the conversation leads two criminal defense bloggers to very different conclusions.

Bidish J. Sarma started the conversation, writing at A Criminal Enterprise that the recent Gallup numbers seem to suggest that even an clear-cut execution of an innocent person might not sway public support for capital punishment. He writes:

The numbers also partly rebut the Marshall Hypothesis.  Former Supreme Court Justice Thurgood Marshall speculated that support for the death penalty would decline as people came to understand how the system breaks down at numerous points in the process.  The Gallup poll suggests that he may have been too hopeful.

I wrote about the Gallup numbers a few weeks back, and I don’t think they’re as dire as Sarma suggests.  When life without parole is included as an option, for example, the public’s support for the death penalty drops from 65% to 47%. That’s significant. It won’t be just innocence that leads to the abolition of capital punishment, because executing guilty people is wrong (and ineffective and expensive), too.

Jeff Gamso posted an insightful response to Sarma, and he makes a very important point: public opinion polls don’t matter. The poll that matters is the one of 12 people in a jury room. And the results there have been different in recent years.

Gamso posts a quick review of death sentences in Ohio since 1996:

  • 1996 - 10 death sentences

  • 1997 - 8 death sentences

  • 1998 - 12 death sentences

  • 2005 - 6 death sentences

  • 2006 - 4 death sentences

  • 2007 - 5 death sentences

  • 2008 - 3 death sentences

  • 2009 - 1 death sentence

And Ohio’s not the only place where death sentences are down - Virginia hasn't seen a jury issue the death penalty in 20 months, prosecutors in Jefferson Parish, Louisiana, haven't sought a death sentence in four years. Gamso points to an important trend here. It could be a quiet revolution in the jury room, rather than a dramatic shift in public opinion, that brings the death penalty to a grinding halt.

As Gamso writes: “That abstract dead innocent guy can't hold a candle the possibility of a mistake with the guy in front of you.

Photo via nickjohnson

Matt Kelley is the Online Communications Manager at the Innocence Project and a graduate of the Medill School of Journalism at Northwestern University. Follow him on Twitter @mattjkelley.
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