The death penalty in America: expensive, racially skewed, and still popular

Support for the death penalty is rooted not in how well the policy works, but rather in Americans’ belief that it’s a moral necessity. Here’s why so many people are concerned about the death penalty — and why others still support it.

In 1972, the US Supreme Court banned the death penalty, saying the way it was then being practiced in the states constituted an “arbitrary punishment” that violated the Eighth and 14th Amendments. In 1976, the Court ruled that states had fixed their death penalty policies, and states began executing prisoners again.

States have executed 1,407 people since the death penalty was reinstated. This map shows all of them.

You can see from the map that the Midwest and South account for the overwhelming majority of executions. But it’s a little hard to see just how far Texas is ahead of everyone else. Texas has executed 524 people since 1976 — nearly five times as many people as the second-place state, Oklahoma (which has executed 112).

American executions peaked in 1999, when 98 people were put to death. They’ve been on the decline since then, and 2014 represented a 15-year low:

Part of that is because fewer people are getting sentenced to death — and more are getting their death sentences revoked, either because they’re fully exonerated or because the government has agreed to settle for a life sentence. In fact, every year since 2001, more people have been removed from death row (either by being executed, dying by other means, or getting their sentences changed) than put on it:

One reason for the decline is that death penalty cases are simply time-consuming and expensive — see number eight on this list. But it doesn’t hurt that in recent years, the number of states that allow the death penalty has dwindled.

Nineteen states have abolished the death penalty. Some of those bans stretch all the way back to before the Civil War. But seven states have banned it in the past nine years:

Since the Supreme Court reinstated the death penalty in 1976, states have overwhelmingly chosen to use lethal injection to execute prisoners:

Lethal injection simply feels more humane to people. A February 2015 YouGov survey asked Americans whether various methods of execution were “cruel and unusual punishment.” Lethal injection was the only method where a majority of Americans agreed it wasn’t.

For as long as America has been executing people, those executions have gotten botched — leaving the victims to suffer a prolonged death instead of the quick and relatively painless one they’re intended to get. But while botched executions aren’t new, they’re getting more common. Austin Sarat, in his book Gruesome Spectacles, found that 8.53 percent of executions between 1980 and 2010 were botched in some way — the highest error rate over the period he studied, which started in 1890.

This is partly due to the fact that while lethal injection is popular because it doesn’t seem cruel, it’s actually the riskiest method out there:

The key chemical in lethal injections is sodium thiopental, originally invented as an anesthetic. But US manufacturers of the drug have increasingly refused to sell it, either out of opposition to the death penalty or due to concern about association with executions. The last US supplier stopped making it in 2011. Then the European Union banned members from exporting sodium thiopental, as a way to make it harder for other countries to execute people. Because the drug only has a four-year shelf life, any sodium thiopental states have held on to is about to expire.

This has led states to use executions to experiment with other combinations of drugs — often causing gruesome, prolonged spectacles, like the 43-minute execution of Clayton Lovett in Oklahoma last year. The Supreme Court is looking at whether experimental executions are constitutional — although supporters of the death penalty, like Justice Samuel Alito, claim it’s unfair to try to indirectly ban the death penalty by banning particular methods. (For more about the drug shortage and the Supreme Court case, see this explainer by German Lopez.)

Meanwhile, a few states are responding to the wave of high-profile botched executions by passing laws to make executions more secretive.

During the modern era of the death penalty, court fights have gotten more and more prolonged — and as a result, people are spending years of their lives on death row before they’re finally executed. In 2012, the average wait from sentencing to execution was nearly 16 years:

Death penalty cases often go through a level of court review and scrutiny that’s way beyond what an average criminal case gets. Both prosecutors and defense attorneys agree it’s important to be as careful as possible before executing someone. But over the past couple of decades, that caution has turned into an arms race, as each side races to get more and more experts involved in every stage of the process — from psychological evaluations to jury selection — and spends more and more time preparing for trials and appeals. A 2010 report found that the average defense attorney spent about 1,900 hours on a death penalty case in the early 1990s; by the early 2000s, it was about 3,500 hours.

That also makes death penalty cases a lot more expensive. The 2010 report found that by the early 2000s, the average case cost over $600,000 — more than twice what it had cost a decade earlier.

The prolonged trial process can result in the defendant getting totally exonerated — and there’s been a slow but steady trickle of death row exonerations over the past few decades.

In a 2014 paper, two researchers tried to project how many of all death sentences are given to innocent people. They were able to do this because they assumed that because of the prolonged scrutiny given in death penalty cases, the majority of innocent people on death row were getting discovered and exonerated — if they didn’t give up their cases or die first. The researchers’ conclusion: if everyone who got a death sentence got the benefit of 21.4 more years of scrutiny and court battles, at least 4.1 percent of them would end up exonerated by the end of that time.

The death penalty isn’t quite as popular now as it was 20 years ago, but an October 2014 Gallup poll found it’s still supported by 63 percent of Americans:

But there’s a big gap in support by race. A Pew Research Center study from March 2014 found that white support for the death penalty was 8 percentage points higher than the average for all Americans (which they measured at 55 percent) — and black support was 8 points lower. That poll found that a minority of African Americans supported the death penalty.

This matters because if you believe the death penalty is never appropriate, you can’t be seated on a jury in a case where someone might be sentenced to death. That’s one of many factors that make it extremely hard for African Americans to get onto juries in capital cases, even though African Americans are often the ones on trial.

African Americans make up 13 percent of the adult population of the US. They account for more than 40 percent of people on death row:

And 35 percent of all executions since 1976:

African-American defendants in cases where a death sentence is on the table are more likely to get sentenced to death than white ones — especially if the jury is all white. And at least one study indicates that might be the product of implicit bias that subconsciously associates blackness with criminality. The study, conducted by psychologist Jennifer Eberhardt (who won a MacArthur “genius grant” in 2014), looked at the facial features of death penalty defendants, and found that “the more stereotypically black a person’s physical features are perceived to be, the more that person is perceived as a criminal… Even in death penalty cases, the perceived blackness of a defendant is related to sentencing: the more black, the more deathworthy.”

Conversely, only 15 percent of victims of crimes that result in a death sentence are black. One Government Accountability Office study from 1990 found that in 82 percent of the cases it reviewed, “race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.”

A fifth of the people executed since 1976 have been African Americans who killed white victims.

Unfortunately, one study has found that telling supporters of the death penalty about its racial disparities doesn’t change their minds. In fact, it makes whites more likely to support it.

In addition to implicit bias, arguments about the death penalty’s racial skew don’t work because support for the death penalty is largely rooted in a moral demand for punishment — not in the facts about how well it works and what it costs. In fact, a majority of people who support the death penalty support it even though they agree there’s a risk of innocent people being executed:

As Vox’s German Lopez wrote:

In 2014, 35 percent of those in favor of the death penalty for convicted murderers said a variation of “it fits the crime,” “eye for an eye,” or “they took a life,” while 14 percent said “they deserve it.” Another 14 percent said the death penalty saves money — even though lengthy court appeals make it more expensive than life in prison. Just 6 percent said it deters crime.