Former president Jimmy Carter called for the United States to abolish the death penalty at an American Bar Association event at the Carter Center on Tuesday, saying the country has become an outlier.
“The United States—a country of which I’m very proud—is not in good company on this issue,” Carter said. Of those sentenced to death worldwide, 97 percent are executed by China, Iran, Saudi Arabia—and the United States, he said.
The United States is the only country in the Western Hemisphere and in NATO with the death penalty, he added, noting that 97 countries have abolished it. No European countries other than Belarus allow capital punishment, and banning it is a requirement for EU membership.
The daylong symposium on the future of the death penalty presented the ABA’s decadelong analysis of death penalty systems in the 12 states that have carried out 65 percent of U.S. executions since 1976, when the Supreme Court reinstated it. Georgia is one of them.
Carter said the death penalty was not questioned when he was governor in 1973. His thinking has evolved since then, he said in a discussion with Stephen Bright, the president of the Southern Center for Human Rights, and ABA president James Silkenat.
There is an “extreme bias” toward the poor, minorities and those with diminished mental capacity, Carter said. “It’s hard to imagine a rich white woman or man going to the death chamber when they are defended by expensive lawyers.”
If people understand that, Carter said, they will not support the death penalty. “They will see that it is not fair.”
While governor, Carter signed legislation revising Georgia’s capital punishment code to comport with the constitutional ban on cruel and unusual punishment. The 1973 legislation was in response to the Supreme Court’s moratorium on capital punishment the year before, when it ruled in Furman v. Georgia that the death penalty was inconsistently and arbitrarily applied, frequently with a racial bias.
“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” wrote Justice Potter Stewart.
The revised Georgia statute passed muster with the Supreme Court in the 1976 case Gregg v. Georgia, which lifted the moratorium.
Bright asked Carter what position he would take on the death penalty if running for governor today. “You or a family member—hypothetically,” Bright added, prompting laughter from the audience. Carter’s grandson, state Sen. Jason Carter, announced last week he would run for the Democratic gubernatorial nomination.
“I would give them a copy of the speech I just made and ask them to do what’s right in their heart,” Carter replied.
“Taking a strong stand against the death penalty, with alternatives like life without parole, would not be a negative factor in an election,” Carter said in response to a question on whether opposing the death penalty could indicate a politician is “soft on crime.”
Public support for the death penalty has waned, he said, and only 33 percent of respondents favored it as punishment for murder in a recent poll.
Carter urged the ABA to oppose the death penalty, saying that ABA members speaking out against it would encourage other Americans to do so as well.
“The Supreme Court is heavily influenced by public opinion,” Carter added. “That’s something I don’t think most laypeople recognize. I wouldn’t know it if I hadn’t been governor and president.”
Even with a “strongly conservative Supreme Court on most issues,” Carter said, it has shown “encouraging signs” on restricting the death penalty.
The court ruled in 2002 that the death penalty cannot be used for those who are mentally ill or mentally retarded. It prohibited capital punishment for defendants under age 18 in 2005 and then in 2008 prohibited it for rape unless there is a death involved.
The ABA takes no official position on whether the death penalty is right or wrong, but it advocates for a moratorium because of the lack of fairness and accuracy in applying it. “There isn’t a state that carries it out fairly,” Silkenat said.
The death penalty is still applied unpredictably, he said, adding that there have been more than 500 executions in Texas since 1977 and none in New Hampshire, even though both states permit it.
“Where you are makes a difference,” Silkenat said. “Skin color matters, and those with mental illness or intellectual disabilities continue to be executed.”
Georgia was the first state to ban the death penalty for the mentally impaired in 1988, Carter noted, but Georgia also has set the highest standard—proof beyond a reasonable doubt—for establishing mental impairment.
“That would be hard for me to do, if it was a bipartisan jury,” Carter added wryly.
Silkenat said the expense of prosecuting capital cases is affecting public opinion. “One thing we’re seeing is that cost is very important politically,” he said.
California has spent $4 billion on capital cases since 1973 and executed 13 people—amounting to $307 million per kill, Carter said.
After the death penalty was reinstated in 1976, executions around the country slowly increased through the 1980s and gained momentum in the 1990s, peaking at 98 in 1999. By last year, that had decreased to 43, according to statistics from the Death Penalty Information Center.
Virginia prosecutors are bringing death penalty cases less frequently because of the resources they require and because public support has waned, said a former Virginia attorney general, Mark Earley, during a subsequent discussion of the bar’s role in the death penalty’s fair application.
“The mood in Virginia is changing,” Earley said. “I don’t think crime is the wedge issue in the United States that it was in the ’80s and ’90s.”
“I think the days of the death penalty are numbered,” Earley said, adding that in his opinion supporting its abolition is no longer a risk for politicians.
Earley said his own position shifted after serving as the Republican attorney general of Virginia from 1998 to 2001. “I was a cavalier supporter of the death penalty,” he said. That changed after he signed off on 15 executions during his term.
“When I got involved to that degree, I was not a supporter any more,” said Early, who in 2002 started Prison Fellowship, a prison ministry group, and is now in private practice. “The deck is stacked against the defendant.”
But Earley did not think a call by the ABA to abolish the death penalty would carry much weight with state legislatures. He suggested the ABA instead present its findings to ALEC, referring to the American Legislative Exchange Council, a conservative policy group which promulgates model legislation for state legislatures.
ALEC supports “free-market enterprise, limited government and federalism at the state level,” according to its website. The group’s anti-government bent would make it receptive to the ABA’s findings, Earley suggested. “The government makes too many mistakes [in capital cases] to qualify them for the job.”