November 23, 2020

What the 2020 Elections Mean for the Future of the Death Penalty

By Annika Russell, DPRP Intern
President-elect Biden has included eliminating the death penalty in his plans for major criminal justice reform.

President-elect Biden has included eliminating the death penalty in his plans for major criminal justice reform.

With the election of Joe Biden and a host of reform-minded prosecutors in several of the most prolific death-sentencing counties in the United States, the results of the November 2020 general elections are likely to influence the use of capital punishment in the United States at both the federal and state levels. 

Federal 

This year, the Trump Administration resumed federal executions after a 17-year hiatus and has executed eight people so far, with five more executions scheduled to occur before Biden’s inauguration. You can read more about the first seven federal executions of 2020 in the Project’s Fall Newsletter here

By contrast, President-elect Biden has made eliminating the death penalty part of his criminal justice policy platform and has said he supports legislation to end the federal death penalty. Although it is only within the purview of Congress to fully abolish the federal death penalty, there is every indication that federal executions will not take place under the Biden Administration, just as they did not under the Obama Administration. 

However, journalists report that there are additional steps President-elect Biden could take to further restrict the use of the death penalty. Biden has the option of commuting the sentences of each of the 54 people currently on federal death row. The Biden Administration could also dismantle the federal execution chamber in Terre Haute, Indiana, just as California Governor Gavin Newsom closed his state’s execution chamber in a symbolic act at San Quentin Prison last year. At the state level, a president could slow down executions by withholding federal grants unless states fulfill certain requirements, such as providing death row prisoners with DNA testing that may help prove their innocence. Though the Biden campaign has said it is in support of incentivizing states to end their use of the death penalty, the likelihood of the Biden Administration pursuing these more aggressive measures to garner state compliance with the President-elect’s anti-death-penalty campaign position remains to be seen. 

The four progressive prosecutors elected in 2020, from left to right:  Gary Tyack (OH), Monique Worrell (FL), José Garza (TX), and George Gascón (CA).

The four progressive prosecutors elected in 2020, from left to right: Gary Tyack (OH), Monique Worrell (FL), José Garza (TX), and George Gascón (CA).

Wikimedia Commons // (CC BY-SA 3.0)

State/Local

The vast majority of death sentences are handed down at the state level, and most of the decision-making power in pursuing these sentences lies with the locally-elected prosecutor. The November 2020 general election saw reform-minded prosecutors make inroads in some the most significant death-sentencing counties. 

In Los Angeles County, California—the county responsible for putting more prisoners on death row than any other in the United States—former San Francisco District Attorney George Gascón defeated incumbent District Attorney Jackie Lacey. In the leadup to the election, the death penalty became a central issue when the ACLU released a study asserting that Lacey’s use of capital punishment discriminated on the basis of race. Lacey also continued to pursue death sentences after Governor Newsom declared a statewide moratorium on executions in March 2019. Gascón distinguished himself as the reform candidate who would not pursue the death penalty and would work to resentence prisoners sentenced to death from L.A. County. Lacey conceded the election to Gascón on November 6th, after it was confirmed that Gascón received 53.7% of the vote.

In Travis County, Texas, former public defender José Garza won the race for district attorney with 69.8% of the vote, easily defeating Republican Martin Harry. Travis County is a heavily Democratic county that encompasses Austin, but it has also successfully sought executions for eight of the prisoners it sent to Texas death row since the 1970s, putting it in the top 2% of counties with the most executions. Garza’s victory was expected after he defeated incumbent District Attorney Margaret Moore in July in a run-off for the Democratic nomination. On his campaign website, Garza pledged to never pursue the death penalty. 

There were also several reform candidates who, instead of pledging to never use the death penalty, won their races by calling for more restrictions on its use. Democrat Gary Tyack, a retired appeals court judge and former defense lawyer who has handled capital cases, ousted incumbent County Prosecutor Ron O’Brien in Franklin County, Ohio. Tyack criticized O’Brien’s use of taxpayer dollars for capital trials and said on his campaign website that the death penalty should be reserved “for only the most extreme situations.” Monique Worrell, another former defense lawyer, defeated independent Jose Torroella in the race to replace Orange-Osceola County, Florida State Attorney Aramis Ayala. Torroella was a self-described law and order candidate who told voters “Do not believe the mantra of ‘Criminal Justice Reform.’” In stark contrast, Worrell ran on a criminal justice reform platform, with an endorsement from Ayala, the outgoing state attorney who famously announced that her office would never seek the death penalty in 2017. Despite stating her personal objections to the death penalty, Worrell is leaving open the possibility that she would seek it in the most extreme cases. Upon receiving 67% of the vote, many considered Worrell’s landslide victory to be a vindication of her predecessor’s policies.

Pro-death penalty prosecutors prevailed in a few other closely watched races in counties that actively pursue death sentences. In Maricopa County (Phoenix), Arizona—a county known for its checkered history of police misconduct influenced by controversial former Sheriff Joe Arpaio and former County Attorney Bill Montgomery—incumbent County Attorney Allister Adel narrowly fended off her progressive challenger, Julie Gunnigle. While both candidates promised to bring reform to the third-largest prosecuting agency in the country, Adel’s win was seen as a blow to the progressive prosecution movement that hoped for a more significant shift away from Montgomery’s pro-death penalty legacy. In Hamilton County (Cincinnati), Ohio, incumbent Joe Deters, the prosecutor who has sent more people to death row than any other prosecutor in Ohio, defeated former judge and civil rights attorney Fanon Rucker to maintain the seat he has held for over 20 years.

In total, the four counties that elected new, reform prosecutors in 2020 have put at least 263 prisoners on their respective states’ death rows, accounting for nearly 10% of the total death row population in the United States. On the whole, this November election appears to reflect the country’s continued shift away from capital punishment.