What the anti-death penalty and anti-abortion movement have in common

Like previous generations of anti-abortion activists in the immediate post-Roe v. Wade world, people seeking to end the death penalty have no prospect of winning in the Supreme Court. And much like those activists the movement to abolish the death penalty has had to adapt its strategy.

As Sarah Kliff a writer for Vox observed, the pro-life movement experimented with different ways of accomplishing this goal, “whether targeting abortion providers, their clinics, or the procedures a woman has to go through before terminating a pregnancy.”

And in state after state the anti-abortion movement succeeded.

Today, death penalty abolitionists are trying to do something similar. Just as the pro-life movement has, unfortunately for women across the country, been successful in slowing or stopping them from exercising their legal rights and obtaining abortions, the gradualist, incremental strategy of death penalty abolitionists shows great promise.

Rather than mounting a frontal assault on capital punishment, in many states and localities, anti-death penalty activists are trying to ensure that even when the death penalty is legal it will be hard, costly or impossible to use.

One part of the strategy involves making it hard for states to get drugs for lethal injection. Another is to mount vigorous, extended court battles to save, or delay the execution of, particular capital defendants.

Another key, and novel, part of their effort is convincing prosecutors, seemingly unlikely allies, not to bring capital cases.

Last week, the movement succeeded in doing just that. On Feb. 17, 56 prosecutors from across the country issued a joint statement saying that “our country’s system of capital punishment is broken. It is time to work together toward systemic changes that will bring about the elimination of the death penalty nationwide.”

This statement marks a watershed moment in the struggle to end the death penalty in the United States.

Prosecutors play a key, but sometimes underappreciated, role throughout America’s criminal justice system. They have virtually unlimited discretion to decide whether to initiate or proceed with any criminal case. Then-Attorney General Robert Jackson got it right when in 1940 he said that the “prosecutor has more power over life, liberty, and reputation than any other person in America,” and that “his discretion is tremendous.”

What is true in other parts of the justice system is also true in capital cases. Prosecutors make the critical choice whether or not to charge an offender with an offense that carries the possibility of a death sentence. And “Despite the grave implications of this decision,” as Jonathan DeMay wrote in Fordham Urban Law Journal years ago, “the United States Supreme Court has never required that any procedures or guidelines be promulgated to control the process employed by prosecutors to reach this decision.”

According to the educational group Capital Punishment in Context, “The financial resources available in a jurisdiction, the views of constituents and the local political climate, and the prosecutors own views can affect the likelihood a defendant will face the death sentence.”

So great is this prosecutorial power that some opponents of capital punishment argue that “Whether someone is sentenced to death has become more a function of the prosecutor on their case than the severity of their crime.” Even when they use this power in an arbitrary or discriminatory manner or engage in egregious misconduct, they are rarely disciplined by either the bar or the courts.

A 2016 Report by Harvard Law School’s Fair Punishment Project found that just five prosecutors—Joe Freeman Britt of Robeson County, North Carolina; Robert Macy of Oklahoma County, Oklahoma; Donald Myers of the 11th Judicial District of South Carolina; Lynne Abraham of Philadelphia, Pennsylvania; and Johnny Holmes of Harris County, Texas—were “responsible for more than 440 death sentences, the equivalent of 15 percent of the entire U.S. death row population today.”

After each of those prosecutors left office, the number of death sentences in the jurisdictions they served declined significantly.

Last week’s joint statement was signed by prosecutors from metropolitan and rural counties in 26 states, 11 of which currently have the death penalty. The statement acknowledged that those who signed it “hold varied opinions surrounding the death penalty and hail from jurisdictions with different starting points on the propriety of this sentence.”

Yet they joined forces in endorsing a wide range of abolitionist arguments. “We have a capital punishment system,” their statement noted, “that costs taxpayers over $1 million per death sentence, runs counter to our constitutional ban against cruel and unusual punishment and guarantees of due process and equal protection, fails as an effective deterrent, and does not reduce crime.”

The prosecutors also acknowledged the disparities inherent in capital punishment cases, noting:

BLOCKQUOTE The death penalty still targets not the worst of the worst, but rather the unluckiest of the unluckiest: people who endured sexual abuse and other unspeakable trauma as children; people with long histories of severe mental illness or traumatic brain injuries;… people who committed crimes during a psychotic break they can’t even remember; people who, because of incomplete cognitive development or other intellectual disability, have never been able to fully function as adults; people with trial lawyers so derelict in their duties and obligations that they never bothered to uncover long histories of illness and trauma. This, tragically, is the profile of death row in America.

The 56 prosecutors pledged not to seek the death penalty “against individuals with cognitive impairments or otherwise diminished culpability.” They also said they would “work toward the elimination of our nation’s failed death penalty system, once and for all.”

Other prosecutors have gone further, and announced that they will no longer bring capital prosecutions under any circumstances. In September, 2021 Utah prosecutor David Leavitt made headlines when he said his office would no longer seek the death penalty in any case. He explained that “innocent people have been executed and that the penalty of death has been carried out inconsistently and discriminatorily. What we have also learned is that the death penalty does not promote community safety. It is not an effective deterrent. It simply demonstrates our societal preference for retribution over public safety.”

Fifty years ago this year, the United States Supreme Court brought a temporary halt to the death penalty when it ruled that it could not be squared with the Constitution’s prohibition against cruel and unusual punishment and guarantee of equal treatment under the law. That decision represented the culmination of a campaign to put litigation at the center of abolitionist strategy and the hope for a sweeping, top down end to capital punishment. But the decision did not hold.

Today the strategy to end capital punishment is much less focused on the Supreme Court. Rather, and much like what the movement to stop abortion did until just recently, it aims one step, one jurisdiction at a time, to bring the machinery of death to a halt.

Enlisting prosecutors to join in this work is one mark of its success.