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If We Have Reached a Landmark in Our Execution Policy, It Is Still One of Confusion

March 18, 1988|FRANKLIN E. ZIMRING | Franklin E. Zimring, professor of law and director of the Earl Warren Legal Institute at UC Berkeley, is a co-author of "Capital Punishment and the American Agenda."

Policies toward capital punishment in the United States in 1988 are confused, ambivalent and unstable. We wish to see episodes like the Willie Darden execution this week in Florida after 14 years on Death Row and six stays as a landmark in execution policy, but a landmark leading where? The conventional wisdom that the United States is easing toward a policy of regularly executing prisoners is not borne out by statistics.

The box score on 1987, for example, can be read as evidence that executions are becoming more widespread in the United States, or as an indication that they have leveled off. Those who regard last year as a step toward executions as normal criminal-punishment policy point to the total number of persons put to death. There were 25 executions last year, the largest total in more than a quarter-century. So the trend is up.

Or is it? Even this total figure, however, is not simple to interpret. The national total of 25 executions in 1987 exceeded those in 1984 by four. Twenty-five executions are about one for every 800 criminal homicides in the United States, perhaps one execution for every 500 criminal-homicide convictions. And because the number of prisoners on Death Row has been increasing, the rate of executions last year was a smaller proportion of those condemned than in 1984. Four years ago 21 of 1,209 prisoners awaiting execution at the start of the year were put to death--a tiny 1.7% of the total. Last year 25 of 1,781 died--an even tinier 1.4%. Such are the new mathematics of capital punishment.

One reason for the minuscule rate of executions in the United States is the fact that only a few states are executing. The death penalty is legal policy in 70% of the states, but executions have been carried out in less than a third of them.

Last year's statistics show an even greater concentration among a few states. In 1987 Louisiana, Texas and Georgia executed 19 of the 25 persons who died nationwide, or 76% of the total. Texas and Louisiana alone accounted for more than half the total. This is a rather peculiar concentration for what observers have been calling a nationwide trend.

The concentration of executions in a narrow band of Southern states has actually increased recently. From 1982 through 1985 at least one new state started executing prisoners each year--the pattern that we would expect if capital punishment were becoming more widespread. But no new state joined the ranks of those executing in either 1986 or 1987. The base stopped broadening.

The career of the death penalty in the U.S. Supreme Court last year also revealed contradictory trends. On the one hand, the court has consistently turned back challenges to the legality of state systems of capital punishment. A decision last year refused to stop executions on the ground that those convicted of killing whites are far more likely to receive death sentences than those who kill blacks. This issue was widely regarded as one of the last major roadblocks to sharp rises in executions.

Yet the comfortable court majorities with which the justices used to turn back challenges to capital punishment seem to have disappeared. Throughout the early 1980s the standard division on the court had been 7 to 2 in favor of capital punishment, with Justices William J. Brennan Jr. and Thurgood Marshall the lonely and predictable dissenters. Last term the court found itself more closely divided, with the important cases decided by 5-4 majorities. This barest majority might be an insufficient institutional foundation on which to legitimize a practice as divisive as the execution of prisoners.

Where are we headed? Observers have been predicting sharp increases in executions for more than a decade--what the anti-capital punishment forces call "the blood bath." With more than 2,000 prisoners on Death Row in the United States and no indications of effective political opposition to executions, 1988 may become the year of the breakout in execution policy. Or maybe it will be 1989.

But maybe not. The dam has not yet broken despite the pressure toward executions in many states. And behind the current logjam on Death Row lies a profound ambivalence, a mood that may produce policy surprises in the near future. Few expected the statistical stalemate on executions to last this long. No one really knows what will happen next.

Fifty years from now the trends and countertrends of the 1980s will be seen as part of the lurching struggle of a federal system toward the abolition of capital punishment. It seems beyond doubt that the United States will join all the other Western democracies in abandoning the death penalty in the long run. It is in the short run, however, that policy choices of life-and-death importance must be made. And, in that short run, policy toward executions may prove as unpredictable as it has been incoherent.

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