Fri June 21, 2013
The Death Penalty's Slow But Seemingly Sure Decline
Originally published on Fri June 21, 2013 12:00 pm
The death penalty has become a bit like the Cheshire cat in Alice in Wonderland. It may never fade away entirely, but capital punishment is certainly less visible or actively pursued than it used to be.
In May, Maryland became the sixth state in as many years to abolish the death penalty. Across the nation as a whole, fewer criminals are being put to death. Last year, 43 were executed, down significantly from the peak of 98 back in 1999.
With violent crime well down from its scary highs in the 1990s, pressure on politicians to support the death penalty has declined as well. And in recent years, courts have made carrying out the death penalty less likely for various legal and logistical reasons.
"Even in places where the death penalty is regularly used, it's slowing down and in some cases it's stopped altogether, so the public is not engaged with it," says Deborah Denno, a law professor at Fordham University. "For the most part, I see abolitionists being more successful than not."
But supporters of the death penalty say it's still a necessary tool for punishing the worst of the worst offenders. They note that, as measured by polls, a solid majority of Americans still support the death penalty — 63 percent, according to a Gallup poll in January.
"Basically, nobody likes the status quo," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports victims' rights. "The question is whether to mend it or end it, and different states have gone in different directions on that."
Remember "double-death Democrats"? That gruesome name was surprisingly common 20 years ago, referring to Democratic politicians who supported both the death penalty and abortion.
Its currency was a sign that no politician wanted to be seen as anything other than tough on crime.
But times have changed. The murder rate has been sliced nearly in half over the past 20 years, in keeping with a dramatic drop in violent crime overall. Politicians are now more willing to consider alternatives to the death penalty.
The publicity given to cases in which convicts have later been found innocent thanks to DNA evidence has also created some qualms about potentially putting the wrong person to death.
One test case of the death penalty's continuing political relevance could come in Colorado. Democratic Gov. John Hickenlooper threatened to veto legislation this year that would have abolished the death penalty, but in May he offered convicted killer Nathan Dunlap a "temporary reprieve" from execution, which had been scheduled for August.
"If the state of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly," Hickenlooper said. "Colorado's system for capital punishment is not flawless."
Republicans were fierce in their attacks, with state Sen. Greg Brophy, a potential challenger against Hickenlooper, calling the governor's decision "gutless."
Use Is Rare
Executions are allowed in 32 states, but the most recent ones have been concentrated in Southern and Sun Belt states such as Texas, Mississippi and Arizona, with occasional exceptions in places like Ohio.
The Supreme Court has narrowed the cases for which capital punishment can be applied, limiting it to murderers, and banning it for minors and those who are "mentally retarded."
Plenty of states have the death penalty on the books and prisoners on death row, but have not carried out executions for years.
Dunlap would have been the first person put to death in Colorado since 1997 and only the second since 1967. California, which has the largest death row population — 727, according to the Death Penalty Information Center — hasn't carried out an execution since 2006.
Like a number of other places, California has faced legal hurdles, with justices skeptical about methods of lethal injections. The drugs used in lethal injections are getting harder to find, with manufacturers shying away from the business.
"Litigation on this front remains immensely successful, so it becomes a de facto moratorium," says Denno, the Fordham law professor.
With the death penalty being so rare and so difficult and expensive to carry out, abolitionists have been able to make the case in several states recently that it would be better to do away with the practice altogether.
"The abolitionist's strategy, which may succeed though I hope not, is to get more states to abolish the death penalty legislatively because they don't use it anymore," says Robert Blecker, a professor at New York Law School.
If they can win in enough states, they'll ultimately try to convince the Supreme Court that "evolving standards of decency" demand the death penalty be struck down as cruel and unusual punishment, Blecker says.
That may not happen anytime soon. Rather than abolishing the death penalty, some states are trying to address its problems.
In Florida, Republican Gov. Rick Scott this week signed a bill meant to expedite the process.
States have always varied when it comes to this issue. Even though capital punishment may remain forever in force in some states, the trend nationwide is clearly against its wide-scale use.
"This is really, certainly north of the Mason-Dixon Line, part of an endgame for states that have had death rows and little enthusiasm for executions," says Franklin Zimring, a law professor at the University of California, Berkeley.