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As part of the National Lawyer’s Guild’s Student Week Against Mass Incarceration, a Feb. 29 Cornell Law School panel, featuring professors Joe Margulies ’82, John Blume and Valerie Hans, discussed the future of the death penalty in light of Justice Antonin Scalia’s death Feb. 13.
Scalia was a stalwart supporter of capital punishment, voting as a member of the conservative majority to uphold death sentences in a number of important capital cases. Scalia’s death has left the U.S. Supreme Court evenly divided between liberal and conservative members. Thus, the Court’s future approach to capital punishment could be strongly influenced by Scalia’s replacement, which in turn may depend on the outcome of the November 2016 elections.
Hans opened the panel by examining the trends in public opinion on the death penalty. While the percentage of those in favor of the death penalty reached a peak in the early ’90s, at approximately 80 percent, the number dropped off to 61 percent as of 2015.
“When you think about the future of the death penalty there are lots of signs that suggest that it’s really in decline, but the fact that a majority of the population actually still answers yes to [the death penalty] suggests complete abolition may be in fact far away,” Hans said.
She discussed how public opinion is closely linked to the number of death sentences; death sentences decrease as public support for capital punishment decreases.
Blume said this was due to a lack of incentive for prosecutors to seek the death penalty when they are not under public or political pressure to do so. He also cited the rise in sentences of life without parole, an alternative to the death penalty, as another reason for a decrease in death sentences and public support.
“The fact that every state now has life without parole makes it easier for prosecutors to tell surviving victim’s family members that they can put the person who killed their loved one away for the rest of their life and protect the public without the family having to endure a lengthy appeals process,” Blume said.
Additionally, the panel focused on the Innocence Project, which uses DNA testing to prove the innocence of those who have been wrongfully convicted. “The innocence project collapses the relevant inquiry from ‘Did they get a fair trial?’ to ‘Did we get the right guy?’” Margulies said.
As for the future of the death penalty, the panel envisioned its decline, but was less optimistic of complete abolition by the Supreme Court.
“I think the use of the death sentence will decline for a variety of reasons: cost, decline in punitiveness, concerns about innocence, concerns about racial impact, changing demographics, a general liberalizing trend, international pressure. But will the court deal the final blow? I’m very skeptical of that idea,” Margulies said.
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