90 Million Strong: 5 Reasons Why Lambda Legal Opposes the Death Penalty

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December 9, 2014

This blog post was co-written by Lambda Legal's Fair Courts Project Manager Eric Lesh, Esq. and Fair Courts Project Educator RJ Thompson, Esq.

Lambda Legal has publicly opposed the death penalty since 1999 when Matthew Shepard was killed in Wyoming. At that time, we issued a statement acknowledging that “because the legal system is fallible, because of the effects of bias on courts and because the death penalty is irreversible, Lambda Legal opposes the death penalty for any crime, even crimes against lesbians and gay men (as in the Matthew Shepard case) and people living with HIV and AIDS.”

Today, we reaffirm this position and proudly stand with the National Coalition to Abolish the Death Penalty by becoming a founding member of their 90 Million Strong Campaign to end capital punishment in the United States.

Here are five reasons why Lambda Legal opposes the death penalty:

  1. Bias in the courts, including racism, gender bias, and homophobia, affect who is sentenced to death.
  2. The legal system is fallible.
  3. Judges and special interest groups exploit the death penalty for electoral gain.
  4. The death penalty violates basic and fundamental human rights.
  5. The death penalty is a harsh and irreversible misuse of government power.

1. Bias in the courts, including racism, gender bias and homophobia, affects who is put to death.

As Lambda Legal expressed in our 1999 statement, “The discrimination that pervades the use of capital punishment conflicts with the goal of equality for all… and much of Lambda Legal’s litigation seeks to correct errors and overturn unjust outcomes that result from personal and societal biases all too frequently not left outside the courtroom door.” Concern that bias, prejudice, and politics will interfere with the fair administration of justice is particularly consequential when an individual’s very life is at stake.

The race of the victim and the race of the defendant in capital cases are major factors in determining who is sentenced to death in this country. Since 1977, the overwhelming majority of death row defendants (77%) have been executed for killing white victims, although African-Americans make up about half of all homicide victims. While there is not as much data about the rates of discrimination based on gender and sexual orientation in capital cases, there have been a number of documented instances including:

  • Wanda Jean Allen, an African American lesbian, was the first woman executed in the state of Oklahoma.  Her sentencing was influenced by her gender expression, as the prosecution asserted that Allen "wore the pants in the family." The implication that Allen dominated her lover overwhelmed the evidence that both women had abused each other.
  • In the case of Calvin Burdine, whose homophobic lawyer fell asleep during his trial, the prosecutor stated during closing arguments that "sending a homosexual to the penitentiary certainly isn't a very bad punishment for a homosexual." Burdine's lawyer did not object to this and also called the codefendant in the case a "tush hog."

2. The legal system is fallible.

Today, as in 1999, our courts remain as imperfect as the people who occupy their jury rooms, counsel tables and judicial benches. Since 1973, over 143 people have been released from death row due to evidence of their wrongful convictions. The numbers of those who have been exonerated raise serious concerns regarding how many people are sentenced to death as a result of legal error as well as how many are executed who, in fact, are innocent.

3. Judges and special interest groups exploit the death penalty for electoral gain.

Nearly 4 out of 5 state judges face some kind of election, with an estimated $54.6 million spent on these races in the 2011-12 election cycle. The death penalty can take center stage in races where TV ads are used to attack judicial candidates as “soft on crime.” A recent study by the American Constitution Society confirmed that fear of being portrayed as “soft on crime” was actually leading courts to rule more often for prosecutors and against criminal defendants.

In a 2014 case, Woodward v. Alabama, the U.S. Supreme Court refused to review the state's law that allows judges to overrule jury decisions on whether a defendant should be executed and impose the death penalty themselves. In that case, Justice Sonia Sotomayor authored a powerful dissent citing to a study on Alabama's death penalty, showing that, "The proportion of death sentences imposed by override often is elevated in election years" to support her conclusion that "Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures" using the death penalty as an electoral tool.

4. The death penalty violates human rights principles.

Capital punishment violates fundamental principles of human rights law.  Over the past few decades, the use of the death penalty has been on the decline around the world. According to Amnesty International, in 1977, just 16 countries had abolished the death penalty for all crimes. By 1988, 35 countries had done so, another 18 had abolished the death penalty for all but exceptional crimes like treason, and 27 more were considered abolitionist in practice because they had not carried out an execution in over 10 years. As of May 2013, 140 countries were abolitionist in law or practice. Yet the U.S. ranked fifth for the most executions in the world last year, behind only China, Iran, Iraq, and Saudi Arabia.

5. The death penalty is a harsh and  irreversible misuse of government power

While the death penalty is now confined to a small number of states, the errors and systemic failures have never been more apparent. This summer, a federal judge in California ruled that the way the state administered the death penalty violated the Eighth Amendment’s prohibition against cruel and unusual punishment. In addition, over the last year there have been several horrifying accounts of “botched” and prolonged executions in states including Arizona, Oklahoma and Ohio. More than 1,200 people have been executed in the U.S. over the past 40 years. It is impossible to know how many of these individuals may have been wrongfully convicted, but even one is too many.

For these reasons, Lambda Legal joins the National Coalition to Abolish the Death Penalty and a number of other organizations to fight for the end of the death penalty. We are part of the 90 Million Strong!