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yg
AMENDMENT PROJECT
National Strategy to End the Death Penalty
For the Five-Year Period: July 1, 2018 - July 1, 2023
Last Updated August 19, 2019
Introduction
The American death penalty is intertwined with the nation’s original sin of slavery, its legacy of
lynching, and the constructs of fear, oppression, vengeance, and racism that shaped and
continue to burden the criminal justice system. That system, and most pointedly the
administration of the death penalty, targets the most vulnerable in our society — people with
mental illness, intellectual disability, histories of childhood trauma and abuse, addiction, and
societal challenges, including racism and poverty. To execute damaged people is the epitome of
America’s failure to provide healing and care, and shamefully reflects a readiness to declare
huge swaths of the population disposable. It is a story that must be told.
Our movement has lifted up that story through litigation, communications, and advocacy, and
prevented dozens of executions and death sentences. We have shown a human side to people
who have committed violent crimes — those our society most wants to discard. We stopped
Texas from executing Scott Panetti, a man so impaired by severe mental illness that he
represented himself at trial wearing a purple cowboy suit and calling Jesus as a witness. Duane
Buck, who was sentenced to die after an expert witness told jurors that Black men are more
likely to be dangerous in the future than white men, is alive today because of the work of
litigators, communications experts, and national and local advocates. Death sentences in
Texas, which historically hovered above 25 annually and peaked at 48 in 1999, have been
reduced to a mere handful over the last few years.
The Gallup Poll, which has been tracking public opinion on the death penalty since World War
Il, indicates that support for the death penalty has reached a 40-year low of just 55 percent,
while several other respected national pollsters indicate that support has dropped below 50
percent. Voices across the ideological spectrum are calling for alternatives. With nine states
having legislatively or judicially repealed the death penalty since 2007', and death sentencing
and executions at all time lows, there is no question that the death penalty is on its way out.
We can end this relic. We can be a beacon to other nations striving to advance human and civil
rights, reduce violence, and protect human dignity.
The Strategy
As Justice Ruth Bader Ginsburg has observed, until the U.S. Supreme Court ends the death
penalty once and for all, the goal for our movement is clear, abolition by attrition: keep
sentences and executions low while demonstrating consistent movement away from the death
penalty through additional legislative and judicial repeal wins. We also need to continue the
successful national communications effort to further damage the brand of the death penalty.
1 NJ, MD, CT, IL, NM, and NH ended the death penalty legislatively. WA, DE, and NY ended the death penalty
judicially. Nebraska's unicameral also voted for repeal in 2015, but it was reversed by initiative in 2016.
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Currently, 21 states and the District of Columbia have formally abolished the death penalty and
another 10 states have abandoned the death penalty in practice through virtually non-existent
usage.” Our strategy is to raise the number of formal abolition states and continue to isolate use
of the death penalty to just a few retentionist counties, which will put us in a solid position to
demonstrate a strong national consensus against the death penalty. Already, we have limited
the application of the death penalty so drastically that its use is viewed as rare, arbitrary, and
capricious in a country that endures approximately 14,000 murders annually. With an adequate
investment of resources over the next five years, we believe we can secure several important
outcomes that make our ultimate victory likely. We describe those outcomes here:
Five-Year Outcomes (July 1, 2018 through July 1, 2023)
We have identified six outcomes that we want to achieve over a five year period to move us
closer to our ultimate goal, and we have laid out the scope of work that will be necessary to
achieve each of them. We believe the following outcomes are achievable by July 1, 2023.
0 #1: Legislative or judicial repeal victories in at least 3 states
Status: With wins in Washington and New Hampshire, we count 2 wins in this column.
The nine death penalty repeal wins that occurred since 2007 were the results of multi-year
campaigns. There were important criteria in place leading up to these victories:
1. The state had moved away from a cultural attachment to the death penalty through extremely
low or no use. A state that has the death penalty on the books but never uses it is not getting
value out of the policy. Frustration with the policy is high, and it is easier for advocates and
communications experts to lift up key messages and advocate for ending it. Judicial repeal is
also less complicated in states with small death rows.
2. A coalition of organizations and individuals in the state were organized and mobilized to give
public cover to the decision makers. A successful legislative repeal effort needs prominent
supporters from across the political spectrum, as well as specific community leaders in key
legislative districts who can help take a bill over the line. The campaign needs diverse voices,
including victims, law enforcement, leaders and communities of color, faith leaders, and
Conservatives to show that support for repeal is widespread. The campaign team needs strong
leadership who can work with in-state coalition members and national organizations to bring
maximum resources to the effort. They also need to understand how strategic communications
and organizing work together to support legislative efforts. These efforts also help lay the
groundwork for judicial repeal.
3. Political opportunity exists to move a bill or bring a legal challenge in the next year or two.
This is often the hardest to ascertain as it can be very fluid, depending on elections and other
political factors. There are a few components to this analysis. A state that is close to legislative
repeal will likely have the support of two out of the three prongs (Senate, House, and Governor)
before the final campaign push begins. This can mean that a state has two houses with a
majority of members who are ready to support repeal, but work needs to be done to get the
governor. Or it can also mean that the state has a solid vote count in one house and the
governor has expressed support, but they still need to get the final few votes in the other house.
Political opportunity also means that there is a way to get through committees and that the
2 10 states haven't carried out an execution in more than 10 years, these include WY, NV, CA, PA, CO, NC, KY, MT,
KS, and OR.
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leadership in both houses will not stop the bill from succeeding. When a state campaign is ready
for a final push, the opposition begins to show up. Getting the third and final piece of the puzzle
can be as or more difficult than the earlier parts of the campaign. In terms of judicial repeal,
there needs to be indications from the court that they are receptive to rethinking the issue.
Finally, if these criteria are met, a clear strategy must be developed and resources must be
available in order to win. After the November 2018 election and given sufficient resources, we
see strong political opportunities over the next few years in Colorado, Wyoming, and Utah.
Repeal efforts are continuing to build in Louisiana, Kansas, Montana, Kentucky, Nevada, and
Virginia but do not yet meet the criteria outlined for the final push. In addition, a petition is
pending before the Pennsylvania Supreme Court that could abolish the death penalty on state
grounds or make its continued use not feasible.
Key Messaging and Messengers
We have learned that there is no single message that moves all audiences. A combination of
messages is key to getting legislators, governors, and the courts to accept that the death
penalty is not serving the state. When these key messages are lifted up in the media and
enhanced by constituent support, elected officials and judges feel comfortable letting go of the
failed policy.
The key messages to success that must be lifted up from voices across the political spectrum
include:
1. There will always be a risk of executing innocent people.
2. The death penalty is rooted in a history of racial oppression and lynching, and racial bias
and unfairness persist today.
3. The long and uncertain process that exists in every capital case can cause additional
harm to the families of murder victims.
4. The death penalty is enormously expensive, and diverts resources away from policies
that actually improve public safety.
5. Ending the death penalty is essential to achieving meaningful, comprehensive criminal
justice reform.
In addition to focusing on effective messaging, we have also spent time developing strategic
projects that will cultivate new and unusual messengers in support of repeal campaigns. One
example is the Responsible Business Initiative (RBI), a project that organizes trade and
business leaders who invest in the United States--especially those from Europe--and have
concerns about the death penalty. In a global economy, the threat of lost business is more
important to many elected state leaders than holding onto a failed, expensive policy. The goal of
the project is to have trade and business leaders demonstrate to policy makers that the death
penalty could hinder new business investments. These relationships can then be leveraged to
support repeal campaigns, as well as a variety of other activities aimed at keeping use of the
death penalty low.
Outcome #2: Keep death sentences under 40/year
Status: 42 death sentences were imposed in 2018. So far in 2019, there have been 17.
This outcome is primarily achieved by supporting state-based, independent, non-profit litigation
organizations that are successfully assisting local trial attorneys to prevent new death
sentences, increasing the use of mitigation, and investing in training for capital trial attorneys.
Two litigator committees have also been formed to explore how more states could attempt to
extend the protections guaranteed by Batson (which requires prosecutors to provide race
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neutral explanations for excusing jurors) and to explore ways to improve legal representation in
several California counties. Litigators are also looking for ways to extend the protections
provided to juveniles under Roper to other youthful offenders under the age of 25.
Community efforts to encourage county prosecutors to seek death less often have also been
successful. As part of our work to reduce death sentences and strengthen and broaden our
relationships with the criminal justice reform movement, we are working closely with local
criminal and racial justice coalitions to demand more humane practices in prosecutors’ offices,
including in Dallas, Houston, Los Angeles, Memphis, and Jacksonville. The counties with the
most death sentences in the past five years are: Los Angeles (CA), Riverside (CA), Orange
(CA), Maricopa (AZ), Clark (NV), Mobile (AL), Harris (TX), and Oklahoma (Ok). This list of eight
counties is down from 16 just a few years ago after a concerted effort was made to lower death
sentences using these tactics.
In addition to these approaches, we are always looking for strategic opportunities to pass
legislation that would make it more difficult to obtain death verdicts, such as bills requiring jury
unanimity or those that increase the standards for evidence or the quality of defense. In the past
year, four states (SD, VA, TX, and OH) have passed bills to exempt persons with mental illness
from the death penalty out of at least one chamber of their legislature. In 2019, both Oregon and
Arizona passed bills to narrow their death penalty statutes.
Ol #3: Keep i under 30/year
Status: 25 executions were carried out in 2018. So far in 2019, there have been 10.
Capital litigators have been successfully keeping executions at bay by chipping away at the
death penalty through the courts, including using state constitutional challenges to decrease the
size of death row. Policy advocates and communications professionals have been tremendously
helpful over the last few years in lifting up unusual voices and concerns about the death penalty
for clemency campaigns and in support of moratoriums. Advocates have also built strong
relationships with influencers in the state who can impact governors, attorneys general, and
parole boards. Some of the states currently doing this work are Ohio, Missouri, Texas,
Tennessee, Arkansas, Pennsylvania, Georgia, and Virginia.
Several states have not carried out executions over the last few years due to lethal injection
(and drug supply) issues but many lives are now at stake as the litigation efforts come to an
end, including in Oklahoma, Arizona, Kentucky, and at the federal level. A recent opinion issued
by the DOJ seeks to strip the FDA of its authority to block the import of foreign execution drugs,
but conflicts with a permanent injunction requiring the FDA to block the importation of sodium
thiopental for use in executions. In the short term, this opinion will likely result in states
attempting to import foreign non-FDA approved drugs for use in executions. Litigators and
advocates are preparing legal challenges in the event that states successfully obtain foreign
drugs, as well as engagement with global industry and government leaders in countries where
imported drugs are likely to originate from.
We must continue to innovate and adapt to deal with these new threats. Two litigator
committees have been formed to prepare for the newly issued federal death warrants and to
explore the possibility of civil action around the ethical question of defendants being asked to
propose alternative means of execution.
Strategic legislation can also be very effective in keeping executions low. In Texas, bills that
required the testing of all biological evidence, prevented the use of junk science, and required
defense attorneys to be given 90 days notice before an execution date is set, have helped to
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slow down or prevent executions. To ensure legislative success, careful analysis of the political
landscape in a state precedes an investment in this approach.
Outcome #4: Major gubernatorial action ( i tation) in at least 2
states
Status: With a new moratorium in California, we count at least 1 win in this column
There are half a dozen states that present opportunities for major gubernatorial action based on
elections that will occur in 2019, 2020, and beyond. These opportunities will require modest
resources for state level advocacy, along with investments in national coordination and
communications to illuminate unusual voices and special voices of influence. These include:
1. California - There are additional opportunities in California to extend executive action
beyond the current moratorium.
2. Oregon — Now that incumbent Kate Brown has been re-elected, she has pledged to take
major action on the death penalty during her term.
3. Colorado — With Jared Polis as the newly elected governor, there is strong potential to
continue the moratorium and/or move toward commutation for the three people on death
row.
4. Nevada — With the election of Catholic Democrat Steve Sisolak as governor, there is an
opportunity to move him to take a stronger position against the death penalty.
5. Kansas — With the election of Democrat Laura Kelly, a death penalty repeal supporter,
there is an opportunity to engage in discussion about future actions that can be taken,
including judicial appointments.
6. Louisiana (2019) — If the Democrat incumbent is re-elected in 2019, there is an
opportunity to work with him to support repeal legislation or other action.
7. North Carolina (2020) - If the Democrat incumbent is re-elected in 2020, there is an
opportunity to convince him to declare a moratorium or commute some sentences in his
second term.
8. There are current opportunities in Ohio and Tennessee to give governors who are
reluctant to execute the necessary political cover to slow down or stop executions.
Outcome #5: Keep at least 5 to 10 states in the “de facto” repeal column
Status: 10 states currently remain in this column
There are currently 10 states that have not carried out an execution in more than 10 years.
Within the next year, Indiana, Louisiana, and Utah will be eligible to join this group. Many of
these states overlap with our best prospects for repeal, so as we successfully move them from
the “de facto” column to the repeal column, the number of de facto states may decrease.
Investments in the state repeal campaigns will simultaneously help protect the majority of these
states from resuming executions, and based on our analysis of the political climate, either no or
very modest resources will be needed to achieve this outcome. Advocates can also play
defense at the legislative level to defeat any efforts to resume executions. For example, secrecy
bills were blocked in South Carolina and Louisiana this year.
Outcome #6: Maintain regular media ‘age that ech the that there is
growing momentum against the death penalty, that it is not an effective response to
violence, that it’s broken beyond repair, and that ending it is essential to creating a
justice system without racial bias.
This outcome will primarily be achieved as an auxiliary benefit from all of the previously stated
efforts, however, it will also be important to create a steady drumbeat in the media highlighting
the growing momentum against the death penalty. This can be done by highlighting new
research and providing regular tracking of trends and data (Death Penalty Information Center),
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and by lifting up cases that exemplify flaws in the system (Capital Litigation Communications
Project). It will also be important to elevate the message that the executions being carried out
today are a result of verdicts from years or decades ago. Most of the individuals facing
execution, many of whom are seriously impaired, would never receive a death sentence today.
In addition, groups like Conservatives Concerned About the Death Penalty (a project of Equal
Justice USA), Catholic Mobilizing Network, and Witness to Innocence have consistently
generated media elevating unique voices and problems with the death penalty. Each state has
an advocacy group that does the same at the state level. Finally, the death penalty abolition
movement is investing in stratgeies to lift up the message that ending the death penalty is
essential to reforming the criminal justice system and addressing mass incarceration, as well
explicitly drawing attention to the issue of racial bias and the historical connection to lynching.
Conclusion
The end of the death penalty is within reach. Our movement's strategy has proven effective, and
perhaps more importantly, our movement's implementation reflects a dedication and tenacity
that is equal to the moral weight of the cause we have embraced. With the closing of Atlantic
Philanthropies (the largest contributor to abolition of the death penalty over the last 10 years),
we are currently focused on holding on the ground we have gained. With additional resources,
we can seize the many opportunities before us to further advance the strategies described
above, hastening our timeline for repeal.
