Laura Arnold

The last two years have been a watershed moment for bipartisan criminal justice reform. From ending cash bail in New Jersey[1] to occupational licensing reform and women's justice issues in Texas,[2] we have seen enormous momentum. States are shortening unnecessarily long sentences,[3] addressing racial disparities,[4] decriminalizing marijuana[5] and helping people seal their criminal records[6] so they can live normal, productive lives.

There has been no greater expression of this bipartisan collaboration and resolve than the passage of the federal First Step Act in November 2018.[7] At a time when it feels like the nation's politics have retreated into sheer tribalism, the fight to fix our broken criminal justice system has brought us together. This is a moment of great consequence for our nation — an opportunity to achieve lasting reforms that will decrease costs, make our communities safer, allow individuals to prosper and right decades of injustice. Leaders across the political spectrum have worked years for this moment.

But with one swift edict, the Trump administration risks throwing this forward momentum into reverse. On July 25, Attorney General William Barr announced that the administration will break an informal moratorium that has stood since 2003 and reinstate federal executions.[8]

It is impossible to dispute, much less defend, the heinous nature of the crimes for which the 62 federal death row inmates [9] were convicted. Reasonable minds vociferously differ on, and will continue to debate, the morality of the death penalty. At this critical juncture and moment of opportunity for criminal justice, we must resist the urge to allow this debate to derail large-scale reform.

From a public policy, public safety and cost perspective, the federal death penalty pales in comparison to larger-scale reforms that we could enact today — areas where the White House could add to its bipartisan accomplishments.

There are roughly 171,000 convicted inmates [10] in federal facilities and yet this decision wastes precious political capital and national attention on a mere 62. Even if we end executions, those 62 will likely never set foot outside a prison for the rest of their lives. Their hearts will continue to beat, but their exile from the living world is immutable.

Meanwhile, there is much greater value in getting the system right for those among the 171,000 federal inmates and nearly 2 million in state and local facilities[11] who have a chance of getting out. Those are the people helped by the First Step Act, and that is where we should continue to focus our efforts. 

The federal government has often served as a standard bearer for state policy, establishing best practices and creating momentum for the states to follow. However, when it comes to the death penalty, the federal government could learn something from the states.

A 2017 study for the Oklahoma Death Penalty Review Commission[12] found that seeking the death penalty cost the state approximately 3.2 times more than seeking a life sentence. 

A 2008 study by the Urban Institute[13] found in Maryland that the average capital-eligible case resulting in a death sentence cost approximately $1.9 million more than a case where the death penalty was not sought.

In my home state of Texas, a study this year found that the added expense of death penalty trials contributes to higher property taxes and reduced public safety expenditures.[14] 

This expenditure of public resources might be worthwhile if taxpayers were getting something significant in return, but we're not. A 2009 survey found that 88% of the nation's top criminologists[15] do not believe the death penalty acts as a deterrent to homicide. And a national poll of police chiefs[16] listed the death penalty at the bottom of law enforcement priorities. That is, they'd prefer to spend their limited resources on something else.

The death penalty raises a confluence of serious concerns that aren't easily solved, ranging from constitutional questions to sheer public expense. No wonder that jurisdictions from coast to coast have stopped pursuing capital punishment. The number of death sentences declined by 50%[17] between 2009 and 2015. In fact, only 16 counties[18] out of 3,143 imposed five or more death sentences between 2010 and 2015.

Many advocates want to lower that number to zero. It's a debate worth having, both at the federal level and in every state. Jurisdictions should, and will, make their own determinations, as they do on numerous issues of policy relevance.

But now is not the time to stoke this fight. We should focus all our bipartisan efforts on positively affecting the more than 2 million lives currently under incarceration nationwide, and on systemic improvements that will result in fewer people facing incarceration in the first place.

The Trump administration has demonstrated a passion for this mission, and a keen skill at building momentum amid an otherwise chaotic political atmosphere. Let's not lose that momentum by derailing the conversation.

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Laura Arnold is co-chair of Arnold Ventures LLC.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.wnyc.org/story/crime-rates-plunge-new-jersey-giving-bail-reform-advocates-chance-gloat/.

[2] https://www.arnoldventures.org/stories/behind-the-negative-headlines-some-bright-spots-for-criminal-justice-reform-in-texas.

[3] https://www.sentencingproject.org/publications/top-trends-state-criminal-justice-reform-2018/.

[4] Id.

[5] https://www.vox.com/identities/2018/8/20/17938358/marijuana-legalization-decriminalization-states-map.

[6] https://www.npr.org/2019/02/19/692322738/scrubbing-the-past-to-give-those-with-a-criminal-record-a-second-chance.

[7] https://www.brennancenter.org/blog/how-first-step-act-became-law-and-what-happens-next.

[8] https://www.nytimes.com/2019/07/25/us/politics/federal-executions-death-penalty.html.

[9] https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/list-of-federal-death-row-prisoners.

[10] https://www.prisonpolicy.org/reports/pie2019.html.

[11] Id.

[12] https://files.deathpenaltyinfo.org/legacy/files/pdf/Report-of-the-OK-Death-Penalty-Review-April-2017-a1b.pdf.

[13] https://www.urban.org/research/publication/cost-death-penalty-maryland/view/full_report.

[14] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3367170

[15] https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7323&context=jclc.

[16] Id.

[17] http://fairpunishment.org/wp-content/uploads/2016/08/FPP-TooBroken.pdf.

[18] Id.