Beyond Repair?

by Garvey, Stephen P.; Devins, Neal; Graber, Mark A.; Gross, Samuel R. (CON)

• ISBN13: 9780822329602
• ISBN10: 0822329603
• Format: Hardcover
• Copyright: 2003-01-01
• Publisher: Duke Univ Pr

Summary

"This collection is an indispensable guide to the new learning on the death penalty, and to the reasons why capital punishment has suddenly become one of the nation's most pressing issues of public policy and debate."--James S. Liebman, Columbia Law School

Table of Contents

Acknowledgments	ix
Introduction	1	(6)
Stephen P. Garvey
Second Thoughts: Americans' Views on the Death Penalty at the Turn of the Century	7	(51)
Samuel R. Gross
Phoebe C. Ellsworth
Capital Punishment, Federal Courts, and the Writ of Habeas Corpus	58	(36)
Larry W. Yackle
``Until I Can Be Sure'': How the Threat of Executing the Innocent Has Transformed the Death Penalty Debate	94	(27)
Ken Armstrong
Steve Mills
Race and Capital Punishment	121	(23)
Sheri Lynn Johnson
Lessons from the Capital Jury Project	144	(34)
John H. Blume
Theodore Eisenberg
Stephen P. Garvey
International Law and the Abolition of the Death Penalty	178	(34)
William A. Schabas
Postscript: The Peculiar Present of American Capital Punishment	212	(19)
Franklin E. Zimring
Contributors	231	(2)
Index	233

Excerpts

SECOND THOUGHTS: AMERICANS' VIEWS ON THE DEATH PENALTY AT THE TURN OF THE CENTURY

Samuel R. Gross & Phoebe C. Ellsworth

American public opinion on the death penalty has turned a corner. From the early 1980s through the mid-1990s, support for capital punishment reached record highs. Public support for the death penalty is still strong, but between 1996 and 2000 it declined significantly from the extraordinary levels that we saw just a few years ago. Why this has happened is less clear, although not for lack of plausible explanations. What will happen next is even more in doubt. If this is Act II, in which America's love affair with the death penalty loses much of its passion, Act III could go in various directions: breakup, renewed infatuation, long-term ambivalence, or indifference. But the very fact that we don't know is news. For the first time in decades, the future popularity of this longtime favorite is in doubt.

We begin this chapter by presenting the evidence for a steady decline in American support for capital punishment since 1996. We then attempt to identify the factors that made change possible. Our analysis proceeds on two levels, the individual and the contextual. On the individual level, we draw on basic psychological research on attitudes and decision making to provide a general account of the conditions that might make it possible for deep-seated attitudes to change. On the contextual level, we examine the social and political trends and events that could have created those conditions over the past decade.

The Recent Drop in Support for Capital Punishment

Public opinion polls have asked Americans about their attitudes toward the death penalty on a reasonably steady basis since the mid-1950s. Looking back over the accumulated data, it's easy to see the long-term trends. Thus, in 1994 we reported that "support for capital punishment declined through the 1950s to a low of 47% in 1966; increased steadily from 1966 through 1982; and has remained roughly stable since 1982, in the range of 70%-75%." Spotting a change while it is in progress is another matter entirely. In an update in 1998-looking at data through 1997-we said that there had been no change in the level of support for capital punishment since 1994. In retrospect, it now seems that by then support had actually begun to decline, although at that point there was no way to distinguish a real downward trend from a short-term fluctuation. By now, we can see that the decline is real.

From 1936 through 1971 the Gallup organization had a virtual monopoly on death penalty questions in national polls. They never asked about the death penalty more than once a year and sometimes not at all. In 1972 death penalty attitudes became a regular item on the General Social Survey (GSS), the most extensive and highest quality general-purpose periodic survey of the American population, conducted by the National Opinion Research Center at the University of Chicago. Since 1973 the Harris organization has also been asking death-penalty-attitude questions on a reasonably regular basis, and from 1977 on other polling organizations and the news media have gotten into the act as well. The frequency of these surveys has varied from year to year-primarily in response to issues in the news-but in general it has increased over time, especially in the past few years. There were, for example, at least twelve national surveys that asked about general death penalty attitudes in the first nine months of 2000.

The reported levels of support for the death penalty fluctuate a good deal from survey to survey. In December 1982 an ABC News poll found 76 percent in favor; the following month a Harris poll reported 68 percent. Similarly, on successive years the GSS reported 70 percent in favor (1984), 76 percent (1985), and 71 percent (1986). Some of these oscillations are due to sampling error; others are probably caused by real short-term variations in public opinion, such as responses to egregious and heavily publicized murders. But one possible cause can be ruled out as a major contributor. In many other contexts, question wording has a strong influence on the overall levels of response to attitude questions. Not here. On this issue-support for or opposition to the death penalty in general-responses to survey items show no relationship to the form of the question. Since the 1970s almost all Americans have had a position on the death penalty, know what that position is, and give it in response to any question that they interpret as asking for it.

The multiplicity of polls enriches, but also complicates, the process of interpreting temporal trends in death penalty attitudes. We have simplified the clutter by choosing a single poll for each year and drawing a time line through the resulting points. The natural candidate is the GSS, when available; for years when there was no GSS we use the National Election Survey (NES)-another series of academic polls of comparable quality-if one was conducted. The result is displayed in figure 1, for the period from 1972 (when the GSS first included a general death-penalty-attitude question) through 2000. It shows a decline in support for the death penalty from 76 percent in 1995 to 63 percent in 2000.

The GSS and NES may be more reliable than commercial surveys, but in the short run they can mislead. Between 1982 and 1995, for example, this measure of support for the death penalty goes up or down for two or three successive years several times, but it remains essentially steady over the entire period. In figure 1 we attempt to improve our ability to spot comparatively short-term trends by presenting data from other polls as well, in two ways. First, we plot the results for every survey we could locate that asked respondents whether they favored or opposed the death penalty. Second, for each year from 1970 through 2000, we calculate the average support across all polls, including the academic polls conducted that year, and draw a line through those points.

The two time lines in figure 1 are very similar. Their most conspicuous divergence is in 1988, when the overall average is almost six percentage points higher than the GSS, 76.7 percent to 71 percent. There may be a story behind that. In September and October of 1988, three polls in succession measured support for the death penalty at unprecedented levels of 78 percent and 79 percent. They may have caught a real spike that was caused by George Bush's notorious "Willie Horton" campaign in the 1988 presidential election, in which he successfully painted his opponent, Michael Dukakis, as a liberal death-penalty opponent who was dangerously sympathetic to vicious criminals. If so, support quickly returned to the usual late-1980s range of 70 percent to 75 percent, and the moment was entirely missed by the GSS polls that bracketed it, several months earlier and several months later. In other words, for better or worse, yearly polls may be blind to short-term effects.

The trend across all polls for the last several years is very similar to the GSS and NES findings: a decrease from an average of 75 percent support for capital punishment in 1996 to 65 percent in 2000. Perhaps the single most striking thing about these recent surveys is the pattern in the year 2000. Each of twelve polls through September of that year measured support for the death penalty at 68 percent or lower. By contrast, only five of fifty polls in the fifteen years from 1982 through 1996 recorded levels of support below 70 percent. In other words, it is now clear that support for the death penalty-as it is measured by these general-attitude questions-has dropped significantly in the past few years. A good estimate is that it has gone down by about six to eight percentage points, from the 70-75 percent range to the 63-68 percent range. This decline erases an increase in support nearly two decades earlier, from 1976 through 1980, when support fluctuated around 65 percent, to 1982, by which time it had stabilized at above 70 percent.

The decline in support for capital punishment should not be overstated. In 1978 about 65 percent of Americans favored the death penalty, and support was considered strong. The same level must still be considered strong support in 2000. But when attitudes are changing the fact of change may be more important than any snapshot taken at a single moment. In 1978, as it turned out, 65 percent was a pause on the way up higher. The long-term context of the current level of support remains to be seen.

Possible Causes for the Decrease in Support

Why has support for the death penalty decreased? Asking people to explain why they changed their minds is unlikely to provide useful information. As far as we know, nobody has tried this technique, but researchers in June 2000 did ask respondents whether their attitude toward the death penalty had changed "in recent years." A majority, 58 percent, said their position was unchanged; 24 percent said they supported the death penalty more than before; and only 15 percent said that they supported it less. Yet we know that support for the death penalty has gone down, not up, in the past five years. These results are not surprising. Except for radical conversion experiences, people are rarely aware that their attitudes have changed: they report their current attitudes as attitudes they have held as long as they can remember. Similarly, most people are unable to give an accurate account of the reasons for their attitudes. Finding people who both recognize that their attitudes have changed and can give an accurate explanation for that change is hopeless. Instead, we must use indirect methods, looking for events and circumstances that might help explain the drop in support for the death penalty.

Crime and Perceived Crime

As we noted in 1994, there is a simple commonsensical explanation for aggregate changes in support for capital punishment: that they correspond to changes in the rates of violent crime in general and of homicide in particular. We have decent data for both crime rates and death penalty attitudes from 1960 on, and they are generally consistent with this hypothesis. As we see in figure 2, support for the death penalty decreased from the late 1950s through 1966, when crime rates were low; increased from 1966 through 1982 as crime and homicide rates rose sharply; remained roughly stable from 1992 through 1996; and decreased starting in 1997 as crimes rates have fallen.

Figure 2 also shows that death penalty attitudes do not track crime rates perfectly. Crime and homicide rates had been rising for years before support for the death penalty turned upward in 1967; they decreased temporarily from 1980 to 1984, but support continued to move up to record heights; and they fell from 1994 through 1996 with no discernable effect on death penalty attitudes. This should be no surprise. If personal experience with crime shaped death penalty attitudes directly, changes in criminal behavior might have immediate effects. But it doesn't. Many studies have shown that people who have actually been victims of violent crime, or who fear for their personal safety, are no more likely to support the death penalty than those who are more fortunate or less fearful. Instead, as in many other contexts, public opinion is not shaped by events themselves but by public perception of those events, and public perception of crime has a complex and indirect relationship to crime itself.

For the most part, Americans learn about crime through the mass media, especially television. Television news programs do report crime statistics; but even when crime is low, they devote far more time to stories of death and violence, murders if possible, and the fictional worlds of television and film are rife with killing and mutilation. The public is aware that the media overemphasize violence. In a 1996 Harris poll, for example, 90 percent recognized that the media were more likely to report "terrible violent crimes" than "[g]ood news [that] violent crime [is] decreasing." And they are aware that their knowledge about crime comes from that untrustworthy source. Nonetheless, their attitudes are more affected by gruesome crime stories than by encouraging statistics showing that crime is on the wane. In April 1998, for example, after four years of declining crime rates, 68 percent of the respondents in a national Harris poll said that violent crime in this country was "increasing," and 44 percent said it was "increasing a lot." In an ABC News poll in June 2000, 80 percent of respondents said that the crime problem in this country was "bad" or "very bad"; of those who took that position, 82 percent said that their opinion was based on the news media, and 17 percent said it was based on personal experience.

Since the perception of increasing crime is driven by the media rather than by experience, its focus is always elsewhere-somewhere other than the place the respondent actually knows. In an October 1993 national Gallup poll, for example, 57 percent of respondents said that their neighborhood had less crime than the national average, and 27 percent said it had none at all; only 10 percent said their neighborhood had an average amount of crime, and a mere 5 percent said it had more than average. In Lake Woebegone all children are above average; in America, all neighborhoods are safer than average. A May 1980 poll by Research and Forecasts got very similar results, and on several national polls strong majorities said simultaneously that while crime in the nation was "bad" or "very bad," crime in their own communities was "not too bad" or "not bad at all."

Eventually, however, the good news gets through, at least in part. In figure 3 we tabulate the percentages of Gallup poll respondents, from 1989 through 1998, who said that there was less crime than the year before, either in the United States as a whole or in their own areas. As expected, across all years people are prone to think that crime is worse than it really is, and are more likely to believe that it's dropping locally than that it's dropping nationally. But there is a clear change over time: starting in 1996 there has been a sharp increase in the proportion of respondents who believe that crime rates are going down. The change is particularly dramatic for the perception of crime nationally-an increase from 3 percent to 5 percent in the early 1990s, to 35 percent in 1998-but the absolute size of the shift is similar for the perception of local crime, roughly 30 percent. To be sure, most people had not changed their views on crime rates by 1998, but the 30 percent or so who did change could accommodate three or four times the group that switched from favoring the death penalty to opposing it between 1996 and 2000.

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Excerpted from BEYOND REPAIR? Copyright © 2003 by Duke University Press
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