Pope Francis and the future of the death penalty

When Pope Francis called for the “global abolition” of the death penalty on Thursday, he touched upon a debate brewing across the country that is on the minds not only of the public and lawmakers, but four of the Supreme Court justices who were sitting in the front row of the House chamber. “Every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes,” Francis told the joint meeting of Congress. As the number of Americans who approve the death penalty has hit a 40-year low, some federal judges question its constitutionality, and states struggle with a shortage of lethal injection drugs, some 3,000 inmates across the country hope they live long enough to see the debate resolved in their favor. “I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation,” the Pope said. At the current center of the death penalty debate are Richard Glossip and Kelly Renee Gissendaner, two inmates currently scheduled for execution next week. Last week, Glossip came within three hours of being strapped to a gurney in Oklahoma when a new set of lawyers managed to win a two-week delay. Gissendaner, the only woman on Georgia’s death row, was taken to a death cell last March only to have her execution postponed after prison officials grew jittery because the drugs meant to kill her seemed unusually cloudy in their vials. What is the future of the death penalty? Experts like Elisabeth Semel of the Death Penalty Clinic at the University of California, Berkeley, School of Law, decline to guess. “I do not believe in prognostication,” she said in an interview. But she allowed that, “it is fair to say we may be approaching a crossroads based on signs from multiple sources,” including popular opinion, legislatures, policymakers and declining death sentences and executions. The issue is not lost on death row inmates. “Condemned prisoners are paying close attention,” said Dale Baich, an assistant federal public defender and lawyer for Glossip. “There is a sense by some that they are caught in the middle of continuing political discussions and legal proceedings, and that their execution dates will be set while the process unfolds. Victims’ Rights Some victim’s family members are baffled by the outpouring of support for Glossip and Gissendaner and other inmates. Glossip was convicted of a murder-for-hire plot involving the death of Barry Alan Van Treese. But he has received widespread support from Hollywood actress Susan Sarandon as well as activist Sister Helen Prejean, who both say he is innocent. Gissendaner was convicted for plotting the 1988 murder of her husband, Doug Gissendaner. The faith community has rallied around her pointing out that she has become a model prisoner and counsels others. Doug Gissendaner’s family members says they have been on a “long, heartbreaking road.” “Doug is the true victim of this pre-meditated and heinous crime,” the family said in a statement released after the postponement. Victims’ rights groups wonder why so much attention is spent on the death row inmates at the cost of their victims. Indeed, the majority of Americans still support the death penalty, according to Pew Research Center. Fifty-six percent favor the death penalty for those convicted of murder, while 38% oppose it. But Pew says the support has fallen to a 40-year low. The change is evident when it comes to Democrats, where 40% favor the death penalty while 56% are opposed. Republican support has changed less dramatically. In 1996 87% were in favor, today that has fallen to 77%. Currently, the death penalty is legal in 31 states, but in 2014, only seven states actually went through with an execution. “The death penalty is on the books, but rarely carried out,” said Richard Dieter, the senior program director of the Death Penalty Information Center, a group that takes no official position on the death penalty. Dieter notes that death sentences were at a new low last last year. Opponents of the death penalty say it is being arbitrarily implemented and doesn’t serve a purpose to deter crime. They worry about the number of exonerations — 155 inmates have been exonerated since 1973 — and the length of time it takes from the time a person is sentenced to death and the time of execution. And then there are the costs. A 2011 study by Judge Arthur Alarcon and Professor Paula Mitchell concluded that trial costs, appeals, and the cost of incarceration contributed to a price tag of $4 billion for the State of California since 1978. The authors contend that if those on death row received commuted sentences, the state could see a savings of $170 million per year. “We are in the midst of a reconsideration of the death penalty” Dieter said, pointing out that juries are returning it less and prosecutors aren’t seeking it as much. Constitutional questions Some of those issues came up when Glossip’s case initially went before the Supreme Court last term. He was challenging the use of one of the drugs — midazolam — that he said would not put in him in a deep enough coma so that he didn’t feel the effect of the other two drugs in the protocol. Oral arguments in the case were particularly tense. On the last day of the term, a 5-4 Court allowed the use of the drug. The liberal justices on the bench were in dissent, and two of them, Justices Stephen Breyer and Ruth Bader Ginsburg, went even further saying that they thought the Court should revisit the constitutionality of the death penalty. In 1972, the Court voided death penalty statutes across the country, but by 1976 it effectively reinstated the death penalty in a case called Gregg v. Georgia. Court watchers are curious regarding the impact of Breyer and Ginsburg’s dissent. Since it was issued, the Court has denied emergency requests for death sentence reprieves from other death row inmates with no noted dissent by either of the justices. Neither Justice Elena Kagan nor Justice Sonia Sotomayor joined the dissent. And Justice Anthony Kennedy, often a crucial swing vote, has shown no inclination to say the death penalty is unconstitutional even though he has voted to narrow its application when it came to juvenile offenders and the intellectually disabled. Meanwhile, in California, a federal district court judge issued an opinion last July holding that the state’s death penalty system violates the federal Constitution. In that case, U.S. District Court Judge Cormac J. Carney wrote that since 1978 over 900 people have been sentenced to death for their crimes in California, but only 13 have been executed. Carney said that California’s “dysfunctional ” administration of the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The case is currently on review at the United States Court of Appeals for the 9th Circuit. Drug shortages In other states, a major struggle is that manufacturers, in part due to pressure from death penalty opponents, have stopped providing lethal injection drugs. As a result, states have had to try different drug protocols. During the Glossip hearing before the Supreme Court, Justice Samuel Alito took on some death penalty opponents who he suggested might be contributing, indirectly, to the shortage of proven drugs. “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty which consists of efforts to make it impossible for the State to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” he asked. Alito’s comments revealed fissures on the Court as it tries to sort out claims, many of which arrive on a last minute basis, and the country as a whole as it weighs the issue of victims’ rights against the potential rehabilitation of death row inmates in an effort to target what the Pope called the need to “protect and defend human life.”