Is death penalty dying in U.S.?

Is death penalty dying in U.S.?


By Dahlia LithwickThe Hamilton Spectator(Feb 13, 2007)



Executions and death sentences have plummeted in the U.S. where 98 people were executed in 1999 and in 2006 that number dropped to a 10-year low of 53.

In a curious application of Newtonian physics, American public and state support for capital punishment is steadily declining just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the U.S. Supreme Court.

The trend is clear. According to the Death Penalty Information Center, which compiles statistics on capital punishment, two states have imposed formal moratoriums on the death penalty, executions in New York are on hold after the state's death penalty law was declared unconstitutional in 2004, 11 states have effectively barred the practice because of concerns over lethal injection, and 11 more are considering moratoriums or repeals.

The raw numbers of executions and death sentences have plummeted: Information Center statistics show that in 1999 the U.S. executed 98 people, and in 2006 that number dropped to a 10-year low of 53. Whereas America steadily condemned about 300 prisoners a year to death through the 1990s, that number has declined by more than half and reached a low of 114 in 2006.

Public support also seems to be faltering. A 2006 Gallup poll showed that two-thirds of the United States still supports capital punishment for murderers, but when given the choice between the death penalty and a life sentence without parole, more people preferred the life prison term (48 per cent) to capital punishment (47 per cent) for the first time in 20 years.

The new uncertainty ranges from queasiness over the methods of execution to concern that we are executing innocents. Lethal injection, the preferred execution method in 39 of the 40 states that permit capital punishment, is particularly fraught with problems.

In December, then governor Jeb Bush of Florida ended executions after one in which it took the prisoner 34 minutes to die, suffering chemical burns in the process. Recent scholarship, including a British medical journal report, indicates that the lethal-injection cocktail may simply mask agonizing pain before death. And state courts are also increasingly bothered about the proper role of physicians, often mandated by law to supervise the lethal-injection process over objections by medical associations and ethics boards.

There are numerous other reasons for our growing doubts. In a 2005 speech, Justice John Paul Stevens noted several, including DNA evidence showing that "a substantial number of death sentences have been imposed erroneously," the disproportionate pressure on elected judges to impose capital punishment, and the problem of "death-qualified" jurors (those who oppose capital punishment are barred from sitting on capital cases).

For these and other reasons, many Americans have begun to worry that the death penalty is reserved for not the "worst of the worst" but the poorest of the poor and those whose trial attorneys later prove to have been asleep at the switch.

The Innocence Project, a nonprofit, university-affiliated legal clinic, reports 194 post-conviction DNA exonerations. A wrongful-executions study by Hugo Bedau and Michael Radelet contends that from 1900 to 1991, 416 clearly innocent people were sentenced to die in the U.S. And studies about the racism that taints the entire system are unequivocal.

In recent years the U.S. Supreme Court has also shown concern about the death penalty. In a 2006 article, Duke University professor Erwin Chemerinsky observed that justices in the final years of the William Rehnquist Court showed a marked tendency to overturn death sentences. Chemerinsky speculated that "a majority of the Court was (and continues to be) deeply concerned about how the death penalty is administered in the United States" and that, as a result of the revelations by various investigators, "the reality of innocent people facing execution has had a profound effect on the Justices."

So in the early years of the new century, the court handed down surprising decisions outlawing executions of the mentally handicapped and of those who were juveniles at the time of their crimes, and refining the tests for the ineffectiveness of counsel. Several justices also spoke publicly and passionately off the bench about flaws in the capital system.

But, largely as a result of a change in the court's composition, that trend may now be ending, just as a few states are defiantly expanding their use of the death penalty. And there is some reason to fear that some justices don't share the burgeoning sense that the machinery of death is broken. One is the new chief justice, John Roberts, who, when he worked in the Reagan White House, wrote a memo suggesting that the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases."

Somehow, just as the American people are beginning to consider the grave injustices pervading the capital system, several justices seem to be staking out strong personal positions on this front in the culture wars.

If for most Americans the time for stubborn certainty about the death penalty, at least as it's currently practised, seems to be over, a court that is more certain than ever of its fundamental fairness looks grievously out of step with an American public willing to recognize the dangers of injustice, error and doubt.

Dahlia Lithwick covers legal affairs for Slate, the online magazine at slate.com. This article was first published in The Washington Post.