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Cruel or Not, the Death Penalty Is Definitely Unusual

What the sentencing of Tiffany Moss, who starved her stepdaughter to death, tells us about capital punishment in 2019

Bob Andres/Atlanta Journal-Constitution via AP

It came as no surprise when a Georgia jury sentenced Tiffany Moss to death on Tuesday. After three hours of deliberation, Gwinnett County jurors previously found the 36-year-old woman guilty of starving her 10-year-old stepdaughter to death in 2013. But the sentence was still unusual in one respect: It was the first time since 2014 that a Georgia jury had handed down a death sentence at all.

Moss’s case highlights the paradox surrounding American capital punishment today. In some ways, the practice’s future looks more secure now than it did just five years ago. With Justice Anthony Kennedy’s retirement, the Supreme Court is more openly hostile to death-row prisoners than at any other time in the last 20 years. Last year, 54 percent of Americans told opinion pollsters that they support capital punishment, marking a rare uptick after years of decline.

But the death penalty is unambiguously falling out of favor where it matters most: in jury deliberation rooms across the country. Death sentences have dropped precipitously nationwide since peaking in the 1990s. American juries sent 315 people to death row in 1996, when public enthusiasm was at its strongest. In 2018, juries handed down only 42 sentences. It amounted to the third-lowest annual total since the Supreme Court revived capital punishment in 1976. (The first- and second-lowest years were 2016 and 2017.)

Sentencing numbers offer a more telling snapshot than any other statistic. The most commonly cited figure is how many people are executed each year, which has also fallen sharply since the 1990s. But this is a flawed indicator because death sentences are often carried out years or even decades after they’re handed down. When Americans tell a Pew researcher or Gallup pollster over the phone whether or not they support the death penalty, the question is cold, abstract, and weightless. A juror assigned to a capital case faces a far different calculus. Their decision means the difference between life and death for a human being sitting across the room.

While jurors are intimately familiar with the gruesome details of the case at hand, they’re also increasingly aware of the system’s overall flaws. A Pew survey conducted in 2015 found that 56 percent of Americans supported capital punishment in general, but also that many of them had doubts about it. Seventy-one percent of respondents said that there was some risk an innocent person would be executed, while 61 percent of them said the death penalty doesn’t deter serious crimes. Only 41 percent thought that white and non-white defendants are equally likely to receive a death sentence.

Other factors may be at play here. As I noted in 2015, prosecutors are pursuing the death penalty less frequently. Each death sentence comes with an arduous, time-consuming appeals process that can last decades. That imposes a financial burden that many counties might not be able to afford, especially in an era of tight budgets and dwindling tax bases. The Great American Crime Decline means there are fewer murders to prosecute at all. Some states have even abolished the death penalty in recent years, though none of them were the dozen-or-so Southern and Western states where new death sentences are most common.

In 2015, I also noted that the decline in new death sentences had created a widening geographic disparity in the system. That trend seems to have accelerated. Twenty-six states that allow capital punishment saw no new death sentences in 2018, according to the Death Penalty Information Center. Only 14 states had at least one death sentence that year. (The federal government also obtained two death sentences in Texas.) There are more than 3,000 counties or their equivalents in the U.S., but last year, the nation’s death sentences came from just 36 of them.

For some of the death penalty’s proponents, this decline may not be a problem. Just because one thinks capital punishment is acceptable—as a constitutional question, as a matter of public policy, and as a moral and ethical issue—doesn’t mean it has to be used in abundance. But even those who might not think capital punishment is “cruel” would have a hard time arguing that it’s not “unusual” now. Justice Stephen Breyer cited its scarcity as a potential constitutional problem in his dissent in 2015’s Glossip v. Gross, a landmark case in which the conservative majority ruled that the use of midazolam, a lethal injection drug, did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

“If we look to population, about 66 percent of the nation lives in a state that has not carried out an execution in the last three years,” Breyer wrote. “And if we look to counties, in 86 percent there is effectively no death penalty. It seems fair to say that it is now unusual to find capital punishment in the United States, at least when we consider the nation as a whole.”

One might be forgiven for thinking that the decline of the death penalty also means that those sentenced to death are the worst of the worst, those who truly deserve it. But all too often, those sentenced to death turn out to be those least able to defend themselves. Moss, for example, turned down the assistance of court-appointed defense attorneys and said she would represent herself. During the trial, she declined to give an opening statement to the jury or to question the prosecution’s first ten witnesses. Moss’s court-appointed attorneys tried to intervene, filing a motion that said she previously suffered damage to the part of her brain associated with reasoning and judgment. They were denied. When the judge asked Moss at one point if she needed anything to assist her with the case, she only replied, “Pencils.”

The Supreme Court and other defenders of capital punishment might consider it an elementary feature of the American criminal justice system. A majority of Americans are also willing to support it, or at least tolerate it in principle. When push comes to shove, however, jurors and prosecutors are treating the system like something else: an antiquated relic of a bygone age, largely reserved for the least capable members of society, and handed down with the arbitrariness of lightning.