New report explores the connection between the death penalty and electoral politics

A view of the death chamber from the witness room at the Southern Ohio Correctional Facility shows an electric chair and gurney. (Photo by Mike Simons/Getty Images.)

Ohio’s capital punishment system has been in a kind of limbo since 2018. The state can’t lay its hands on the drugs necessary for lethal injection, so executions have stopped, and death row inmates are facing an indefinite delay.

Even adding those complications to an already lengthy and expensive appeals process, capital punishment retains a rhetorical appeal among some Republican officials.

Earlier this year two lawmakers floated a workaround to restart executions. State reps. Brian Stewart, R-Ashville, and Phil Plummer, R-Dayton, introduced a bill allowing execution by nitrogen hypoxia in addition to the existing lethal injection protocol. Attorney General Dave Yost, who’s already laying the groundwork for a 2026 gubernatorial bid, embraced the idea and testified in support of it last May.

“This bill will put an end to the stalemate and restore Ohio’s sovereign power to act,” Yost insisted.

The timing of that push, as voters prepare for a consequential election, might not be a coincidence. A new report from the Death Penalty Information Center highlights how capital punishment intersects with electoral politics, and how the demands of political campaigns have pushed some officials toward a more aggressive posture.

Robin Maher helped write the report and heads up the non-profit which tracks how the death penalty is applied but doesn’t take a position for or against it.

“We are very unique in the way that we elect critical decision makers in our death penalty system and we wanted to point out that the electoral process inserts elements of unpredictability and unfairness into an already flawed death penalty system.”

State supreme courts

Despite efforts to ensure capital punishment is applied consistently, the structure of the U.S. judicial system makes it difficult to insulate those decisions from political considerations. Unlike every other country in the world, voters in most U.S. jurisdictions elect their prosecutors. Similarly, most judges in the U.S. are either elected to the bench or must go to the ballot to retain their position.

“In a system where voters have few clear measures of job performance besides the number of convictions and sentences,” the report states, “many prosecutors naturally do what they believe will help them keep their jobs — an imperative that can lead to arbitrary results and injustice.”

When it comes to prosecutors, they note, studies diverge on the influence of elections on sentencing, but neither conclusion is great. On the one hand, at least one study found sentence lengths grow in election years. On the other, studies found sentences decrease because prosecutors bring more cases to trial in an effort to improve their conviction rates. In any other year, those cases would likely be settled with a plea bargain.

The study focused on capital cases in Ohio, North Carolina, and Georgia, noting all three states share a similar population, political bent, and electoral process for the state supreme court. The authors added the three states have sentenced and executed a similar number of defendants since capital punishment was reauthorized.

The analysis found state supreme courts were very likely to side with prosecutors when considering whether to affirm or reverse a death sentence. But even after controlling for the number of cases that come up, they found a statistically significant correlation between court decisions and election years. In non-election years, the court affirmed death sentences 70.8% of the time. That rate jumped to 81% during an election year.

But Maher explained, “the big finding that jumped out at us was that we found that supreme courts affirmed two times the number of death sentences in election years as opposed to non-election years.”

That’s to say, in 34 of 51 cases, courts affirmed a death sentence as at least one of the sitting justices was preparing to go before voters.

Zeroing in on Ohio, the study highlighted a 2014 case in which the state supreme court upheld the death sentence for Ashford Thompson only six days before Ohio’s general election. Two sitting justices were up for reelection, including former Justice Judith French who wrote the majority opinion. The study’s authors note campaign ads that year emphasized French’s toughness and her vote to uphold a death penalty conviction in a prior case.

But the study also noted an example of the court seeming to use the election calendar to insulate itself from the political impact of capital cases. The so-called lame duck session, in the two months right after a general election, saw a “disproportionate” number of cases. That time period makes up about 8% of what the authors surveyed but the court released 19% of its capital case decisions in that time frame.

Governors and clemency

Outside of courts and prosecutors, the governor plays a significant role in the application of the death penalty. In most cases, the governor’s clemency powers are the very last off-ramp before an execution. But here again researchers found electoral politics played a significant role.

To review clemency decisions, the center looked all the way back to 1977, the year after the U.S. Supreme Court allowed capital punishment to resume. The authors did not include the blanket clemency former-Illinois Gov. George Ryan issued to 167 people on his way out of office.

They found the majority of clemency grants (56.2%) whether for individuals or small groups of inmates came when a governor wasn’t running for reelection. That percentage climbed further (63.4%) when the governor’s decision wasn’t dependent on an outside authority like a parole board.

Narrowing their focus to individual grants of clemency only, the authors found governors with the sole authority to act nearly always did so (84.6%) when they would not have to answer to voters.

They note the highest share of clemency decisions come in December and January — the two months directly following an election and just before the end of a term in office.

Public opinion

Despite the apparent influence that capital punishment and electoral politics have on one another, the center noted public opinion seems to be shifting away from the death penalty. The study notes Gallup polling from last year saw support for the death penalty drop to its lowest point in more than 50 years.

“Elected officials are paying attention to how the public are changing with respect to its support of the death penalty,” the report said.

The report highlighted Matthew Ahn’s unsuccessful challenge of Cuyahoga County prosecutor Michael O’Malley earlier this year. Ahn was motivated to run in part by the county’s track record pursuing capital cases. Between 2018 and 2021, he noted on his campaign website, the county shared the lead for most capital convictions in the country. During the primary, he committed not to seek the death penalty if elected.

In the end, Ahn was defeated, but Maher noted 10 or 20 years ago, elected officials “couldn’t dream of saying they opposed the death penalty or planned to reduce its use or restrict its use or (were) even critical of its use.”

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