The death penalty seems to be slowly but surely on its way out in the US, the only big democracy in the West that still permits it, as Americans increasingly voice their opposition. Its demise could now be coming even quicker, thanks in part to a growing group of the very officials responsible for seeking executions.
In recent elections, local district attorney races have suddenly become more competitive, fueled by an influx of outside cash. In several US counties, election of reform-minded prosecutors skeptical or downright opposed to capital punishment represents a payoff on a bet made by George Soros, the liberal billionaire investor.
Soros identified local US prosecutorial elections as a crucial way to instigate criminal-justice reform. The US has been repeatedly criticized by international human rights organizations and the United Nations for use of the death penalty and for its ballooning mass incarceration. The Hungarian-born Soros, who has donated millions to support democracy and free expression in Eastern Europe and around the world, spent nearly $10 million in local law enforcement races in 10 states, backing the winners in most.
“The single most important determinant of whether a death sentence is going to be returned in a given case has nothing to do with how bad the murder is—it has to do with who the prosecutor is,” said Robert Dunham, executive director of the Death Penalty Information Center of Washington, DC, a research group.
In 2016, there were fewer new death sentences than at any other time since the 1970s, when capital punishment was reinstated in the US. The number of executions was the lowest it has been in more than two decades. Much of the move away from capital punishment has been inspired by the increasing ranks of US voters who oppose executions. But it also faces an obstacle: other elected officials—outside of the prosecutor ranks—who are eager to be seen as tough on crime, especially in particularly high-profile, politically charged cases.
Showdown down south
That dynamic is under the spotlight in Florida, where Aramis Ayala, newly elected prosecutor for Orange and Osceola counties in Florida, said March 16 she won’t ever seek the death penalty, provoking outrage from other law enforcement leaders. She said capital punishment is not an effective deterrent, is too costly, and does not provide true justice for victims’ families. Her decision means she will not call for the execution of Markeith Loyd, accused of murdering his pregnant ex-girlfriend and killing a police officer who tried to arrest him.
Orlando police chief John Mina said he was “furious” with the decision, and the state’s prosecutors’ association emphasized that other Florida prosecutors would continue to seek the death penalty. More dramatically, Florida governor Rick Scott took her off the case and appointed a special prosecutor to take charge of Loyd’s case. Ayala filed a motion challenging Scott’s authority to remove her.
This is not the first clash between a governor and prosecutor over the death penalty — in the mid-nineties in New York, governor George Pataki took Bronx District Attorney Robert Johnson off a case against a man accused of the murder of a police officer because Johnson would not seek the death penalty. But it’s extremely rare.
“[Governors] are typically politicians who say ‘We should be following the will of the people’—the will of the people as expressed through their elected officials,” said Dunham. Johnson was re-elected to his position again and again, becoming the longest-serving New York City prosecutor.
Although the majority of Americans still support capital punishment, there’s been a 20 percentage-point drop in the last two decades.
“Prosecutors historically have been the driving force behind the number of death sentences imposed in the US,” said Dunham. “As elected officials they understand what their constituents are thinking or they don’t survive the next election.”
The changing of the local guard
In 2016, prosecutors who were active in seeking executions were voted out across the US, including several Florida counties. In Hillsborough County, the newly elected Andrew Warren said he would re-evaluate that office’s frequent pursuit of the death penalty, saying it should be reserved for “egregious cases.” Voters ousted Angela Corey, the Duval County prosecutor known as one of the most aggressive in the country in capital cases. Both Warren and Corey’s successor, Melissa Nelson, said they would form special teams to identify and reverse wrongful convictions.
Warren’s and Nelson’s jurisdictions belonged to the 16 counties with the highest rate of death sentences in the US between 2010 and 2015, according to a study from Harvard’s Fair Punishment Project (Ayala’s Orange County has also historically been an outlier). This list also included Harris County, Texas, Jefferson County, Alabama, and Caddo Parish, Louisiana, where the prosecutor was also voted out in the last election. In Harris County, which has the highest number of executions in the nation, reformist prosecutor Kim Ogg said “you will see very few death penalty prosecutions.” Charles Todd Henderson in Jefferson County, who said it would not be his “routine policy” to seek executions, won against incumbent Brandon Falls. In Caddo Parish, James Stewart decided not to seek the death penalty in many cases he inherited.
In Colorado, a bill to repeal the death penalty failed in February. But several months earlier, new Denver prosecutor Beth McCann said capital punishment in her county was dead, following up on a campaign promise. “I don’t think that the state should be in the business of killing people,” she said.
The campaigns of Ayala, Ogg, and Stewart were all in some way supported by Soros, who is committed to abolishing the death penalty in the US, which executes more prisoners than almost anywhere else. Only China, Iran, Pakistan and Saudi Arabia rank ahead.