How Capital Punishment Fell Out of Favor
In March, Virginia abolished capital punishment, startling many Americans. But for close observers, the news wasn’t a huge surprise. “The United States has undergone a sea change in its views toward capital punishment,” says Robert Dunham, executive director of the Death Penalty Information Center.
It’s true that President Trump’s administration carried out 13 federal executions in its last seven months. But the majority of death row inmates are in state prisons. And at the state level, executions have almost trickled to a stop. In 2020, seven people were put to death by states around the country, down from a high of almost 100 in 1999. Gallup measured public support for capital punishment at 80% in the mid-1990s; in 2020, support had dropped to 55%.
A growing number of conservative state legislators support ending the policy, viewing it as an expensive symbol of government overreach. Republicans in red states like Wyoming and Kansas recently introduced legislation to abolish the death penalty in their states, and Ohio is widely viewed as next in line to successfully end it.
Maurice Chammah documents that gradual erosion of support in his award-winning Let the Lord Sort Them: The Rise and Fall of the Death Penalty. Chammah’s book focuses specifically on Texas, but given the state’s national prominence in death sentences and executions, it serves as a fitting symbol for the country’s overall relationship to the policy. At the time of writing this article, there have been 1,534 executions in the United States since 1976, 572 of which took place in Texas, more than in any other state.
Let the Lord Sort Them is essentially a case study illustrating how popular opinion and public policy can change and be changed over time. Chammah is a “show, don’t tell” kind of journalist, and he draws few explicit conclusions. Instead, he presents legal cases that occurred between 1972 and 2017, provides context, and profiles many of the lawyers, judges, and defendants involved.
His story illustrates the ability of a small group of determined advocates to chip away at a racist, unjust policy that was once part of the national landscape. Those advocates—lawyers, in this case—knew decades ago that the death penalty was disproportionately meted out to low-income people and racially marginalized groups, especially Black people. Theirs was a war of attrition that likely took much longer than most of them had hoped. But they’ve been able to bring the death penalty’s legitimacy into question and contribute to its decline.
In 1972, when the U.S. Supreme Court ruled the death penalty to be so arbitrary as to be cruel and unusual, states set about trying to create new laws that would make death sentences less random. But finding a way to standardize capital trials while taking individual situations into consideration is one of the central struggles of death penalty decisions. Then Texas legislators gave juries a key, ambiguous guideline: To sentence a defendant to death, they had to believe that person would otherwise remain a danger to society. Some observers quickly understood that in a racist society, the subjective concept of “future dangerousness” would inevitably lead to defendants of color being disproportionately sentenced to death, because they were often viewed as having an inherent criminality.
And Texas, like the nation itself, has always been a racist society. “After the Civil War, violence against freed Black people was as vicious in Texas as anywhere else in the South,” Chammah writes. But just as we Americans have lied to ourselves about the racism and brutality in our not-so-distant past, Texans created a frontier mythology as a way of explaining their culture of retribution. And later, Chammah writes, Texas politicians—like many throughout the U.S.—concealed their racist beliefs in “tough on crime” rhetoric.
The result was pro-death-penalty prosecutors and judges who rarely entertained questions about a trial’s fairness. Examples include those who ignored a written admission of guilt when someone else was scheduled to be executed for the crime, and the repeated use of a psychiatrist who declared defendants he’d never met to be future dangers. In Harris County, the longtime district attorney was three times more likely to seek the death penalty if the defendant was Black.
Into this space stepped the Texas Resource Center and its hardworking lawyers, a ragtag cluster of do-gooders who saw that justice was not being done. Chammah focuses in particular on Danalynn Recer, a Diet Coke-swilling dynamo who specialized in investigating defendants’ backgrounds in order to better plead their cases to juries. Recer and her colleagues weren’t “reasonable,” in the eyes of the Texas judicial system: They were doing everything they could to save lives, whether their clients were guilty or not. That meant filing multiple appeals, often just to gum up the system, slow it down, and burn through public funds.
Ultimately they’ve been able to bring the death penalty’s legitimacy into question and contribute to its decline.
Recer was also trying to provide her clients with quality defense lawyering. That usually meant creating a narrative that painted a picture of the convicted person’s difficult past and humanized them, often in contrast to prosecutors who tried to depict them as one-dimensional monsters.
The resource center lawyers toiled in the face of increasingly tough-on-crime laws in the 1980s and ’90s. But around 1999, public opinion finally began to shift. A few defendants from Texas, who were difficult to pigeonhole, made national news. Corruption on the part of prosecutors became more apparent. Celebrities and national journalists began focusing on Texas.
And the new technology of DNA analysis had a huge impact. “It represented a seismic shift, as the image of an innocent person facing execution was seared into public consciousness,” writes Chammah. “It was no longer realistic to believe that the system could get it right every time.”
Other things changed, too. The defense lawyers’ strategy of burning through public funds paid off: capital trials, which could cost up to $2 million each, became prohibitively expensive for small counties. In 2005, Texas finally established the option of life without parole for murder, something that both prosecutors and defendants could agree on as an alternative to the death penalty. Over time, these changes cut deeply into the state’s death penalty convictions.
Chammah homes in on the story of Elsa Alcala to represent the shifting attitudes of centrist Texans. She’s a Latinx woman who starts out as a Republican prosecutor and becomes a judge, but gradually begins to question the justice of capital punishment. She’s affected by Recer’s tactic of humanizing defendants, one adopted by other defense lawyers. By the end of the book, Alcala has done a 180 and taken a job working with some of the resource center lawyers.
Chammah doesn’t simplify history into an easy story of Texans suddenly seeing the error of their ways—he describes how changes in public attitudes toward the death penalty include factors like technological change and urbanization. But he shows that strategic actions by impassioned advocates can appeal to the public’s compassion, change hearts on issues like retribution and mercy, and provide hope for the big justice struggles to come.