The Death Penalty: How Long Will It Survive?


(The Root) — On May 7, officials at the Mississippi State Penitentiary, better known as "ol' Parchman," planned to strap Willie Jerome Manning to a gurney and pump a lethal cocktail of drugs into his veins at precisely 7 p.m.


But just five hours before he was set to die, the state's Supreme Court halted Manning's execution. Attorneys for the U.S. Justice Department had found that the one piece of forensic evidence offered against Manning — by an FBI expert who testified with certainty that a hair found in a murder victim's car belonged to Manning — was "invalid," throwing the convicted man's guilt into doubt.

With that new information and after a series of hearings, the Mississippi Supreme Court ordered DNA testing on the hair after years of refusing to do so. The results are still pending, but in the meantime, another man may have been saved by the use of DNA evidence.

Manning's case has attracted national attention and the assistance of legal heavyweights Barry Scheck and Peter Neufeld, co-founders of the New York-based nonprofit the Innocence Project. In some ways, what's happened to Manning is emblematic of American justice and the state of its most severe and irrevocable penalty: capital punishment. And the reason, advocates of abolishing the death penalty say, is increasing cultural awareness of DNA science and expectations that it can be used to reach certain, not just likely, conclusions about guilt.

Fighting the Death Penalty From the States

Twenty years after the first prisoner was exonerated because of that science, states around the country have moved beyond questions about the quality and quantity of lawyers in death-penalty cases or how frequently these sentences are handed down when defendants of color are accused of killing white victims. Those issues made headlines in the late 1980s and 1990s. Today, death-penalty opponents are forcing debates about actual innocence and pushing for an end to capital punishment state by state.

"I think unfortunately there was a point, not so long ago, where even in some of the most liberal, progressive, even activist circles, doing away … with the death penalty was just another lost lefty cause," said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty. "But there's no question, no question at all in my mind, that 20 years after the first condemned man that science proved to be innocent walked out of jail, there's a new kind of momentum. We've truly turned some kind of corner."

Indeed, 142 men and women have been exonerated after DNA tests showed that they did not commit the crimes for which they were sentenced to death. A new chorus of voices has joined the usual human rights collective who have long wanted to rid the country of capital punishment. Six states have eliminated capital punishment in the last six years, and at least two others are expected to follow in the near future, death-penalty opponents say.


Inside the NAACP — the nation's largest and oldest civil rights organization — organizers are beginning to speak quietly but openly about a state-by-state movement to abolish the death penalty that includes a national endgame. There's even talk of eventually bringing a case to the U.S. Supreme Court that asks the justices to eliminate capital punishment nationwide.

The number of people receiving death sentences is declining, Rust-Tierney said. Legislation to reform or repeal the death penalty is now regularly introduced in states across the country. And perhaps most significantly, longtime death-penalty opponents have been joined in the trenches by civil rights activists and those with the political experience and social standing to raise real questions about inequality in the criminal-justice system.


"The death penalty really is becoming increasingly marginalized," Rust-Tierney said, "and with good reason."

Why the Trend Away From Capital Punishment?

In fact, since 2000, death-penalty sentences handed down by state courts and juries have declined nearly 75 percent, and the number of executions has been cut in half, said Richard Dieter, executive director of the Death Penalty Information Center, a Washington, D.C.-based anti-death-penalty nonprofit.


One explanation for the change: Crime itself has declined, said Dieter. Another is that the nation's increasingly cash-strapped states have looked at the cost of the death penalty and the multiple appeals and hearings that almost always follow, he said. Longtime death-penalty opponents wish, Dieter said, that arguments about the uneven nature of death-penalty sentences had made the difference.

"It's a combination of a lot of things," Dieter said. "But if I had to point to one thing, it's innocence, the possibility of actual innocence. DNA testing has revealed to the public that in so many cases where people thought the right person was on death row, [it] turned out to be wrong. DNA has produced some growing awareness of the irrevocable and fallible nature of the death penalty."


It's the so-called CSI effect. Juries want proof. And even in states such as Texas — the longtime national leader in executions — beginning this year, prosecutors will be required to make sure that any evidence that can be tested for DNA material undergoes that process before a jury is asked to impose the death penalty. And all of the 32 states that maintain the death penalty also now give juries the option of sentencing defendants to life without the possibility of parole.

In 2012 and 2013, legislatures in Connecticut, Maryland, Delaware and Colorado considered repealing the death penalty. Only the Connecticut and Maryland measures became law. But Colorado's governor did institute a moratorium on executions.


Longtime death-penalty opponents say that the increasing involvement of new voices in the movement to abolish capital punishment has also played a significant role in the slow state-by-state death of capital punishment. One of those new voices: the NAACP.

"Look at Maryland," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "I think the governor wanted to do away with the death penalty for some time, and most of the votes have been there in the Legislature for a while. We've certainly been here working on it. But when the NAACP came in and really pressed the issue, I think it gave some people the political cover they needed."


Abolition as a Civil Rights Issue

Still, change happens slowly. In Maryland, Kirk Bloodsworth, a white ex-Marine, became the nation's first exonerated death row inmate in 1993 after DNA testing proved that he was not guilty of the 1984 rape and murder of a 9-year-old girl. But it wasn't until March of this year that Maryland abolished the death penalty.


Although public support for the death penalty hit a 39-year low in 2011, it ticked up slightly this year. About 63 percent of Americans said that they supported the death penalty as a potential penalty for murder in a January Gallup poll.

Activists know that they still have an uphill fight. There are just over 3,100 people who have been sentenced to death in the nation's prisons. And although blacks make up just 13 percent of the nation's population, African-American inmates make up 41 percent of those living on death row and 35 percent of those executed since the Supreme Court affirmed the constitutionality of capital punishment in 1976.


Just over 80 percent of the nation's executions last year occurred in Southern states, which still support the death penalty in strong numbers.

"I think we want to aggressively champion equality and challenge injustice whenever and wherever we can," said Niaz Kasravi, the NAACP's criminal-justice director. "That sounds lofty and certainly is a tremendous task, but I think there's no question that the racial inequalities we have seen in who is sentenced to death; the errors that we know have happened or almost happened; and the aggressive way that policing [and] the broader criminal-justice system are distorting communities of color across this country have given us a very clear sense of mission here."


NAACP officials could not help taking note of the crowds — including thousands of young people — mobilized in the run-up to Troy Davis' 2011 execution in Georgia, Kasravi said.

Davis, an African-American man tried and convicted in the 1989 murder of an off-duty police officer, became a sort of national cause. Seven of the nine witnesses who initially offered damaging testimony against him recanted significant portions of their testimony. More than 1 million people signed a petition calling on Georgia to reconsider his death sentence.


The U.S. Supreme Court ordered a lower court to reconsider evidence in the case that strongly suggested Davis' innocence, and a former U.S. president — even the pope — asked Georgia to commute Davis' sentence. In September 2011, Georgia executed Davis. In his final statement, he maintained his innocence and asked death-penalty opponents to continue the fight.

Ben Jealous, a longtime civil rights activist and organizer, took the helm at the NAACP after serving as director of Amnesty International's U.S. Human Rights Program, where he focused on death-penalty issues, prisoner rights and racial profiling, and juvenile-justice matters. So adding the death penalty to the NAACP's list of national priorities wasn't exactly a stretch, Kasravi said.


If and when the state-by-state battle that death-penalty opponents are waging now causes the death penalty to be abolished in a simple majority of states — 26 — the NAACP is prepared to mount a constitutional challenge on the grounds that the death penalty amounts to cruel and unusual punishment in the states where it remains. The Supreme Court barred states from executing the mentally disabled in 2002 and juveniles in 2005 on the same grounds.

"Abolishing the death penalty really isn't a far-fetched idea," Kasravi said. "At this point, I'd say it's within sight."


Janell Ross is a reporter in New York who covers political and economic issues. She is working on a book about race, economic inequality and the recession, due to be published by Beacon Press next year. Follow her on Twitter.