Why Has The Death Penalty Grown Increasingly Rare?

The last execution scheduled in the U.S. for the year is set for Tuesday in Georgia. But capital punishment has gown rare in America, to the point of near extinction.

Even though polls show that 60 percent of the public still supports the death penalty, and even though the Supreme Court has repeatedly upheld it as constitutional, the number of executions this year so far is almost the same as the number of fatalities from lightning strikes — 27 executions versus 26 deaths by lightning.

It's an ironic statistic. When the Supreme Court briefly banned the death penalty in 1972, it did so, in part, because, as Justice Potter Stewart put it, capital punishment was being imposed so randomly and "freakishly" that it was like being "struck by lightning."

Four years later, the court would revive the death penalty, but with new limitations aimed at reserving it for the so-called worst of the worst.

Few could have imagined the trajectory the death penalty would follow in the years after. The number of executions soared in the 1990s — hitting a high of 98 in 1999 and ultimately totaling more than 1,400 — but tailed off dramatically after 2000. With just one more execution set for this year, the current year's total will be the smallest number in almost 25 years.

While the death penalty remains the law in 31 states, that figure is misleading.

In many of the 31, capital punishment has largely fallen into disuse. In four states, the governor has put a moratorium on the death penalty, and in 17 there's an executive or judicial hold on executions because of botched procedures or problems in obtaining drugs that courts and legislatures have approved for lethal injection.

Why The Downward Trend?

In fact, in the past 11 months, only five states conducted executions — Texas, Georgia, Missouri, Florida and Virginia.

Those who deal with the death penalty regularly — whether opponents or supporters — acknowledge the downward trend. So why is it happening?

"From the 1970s to the '90s, I think the nation essentially ceded all of its concerns about the death penalty's reliability to the Supreme Court, which seemed to be fully on the case," says death penalty researcher James Liebman of Columbia Law School.

But, he observes, by the early 2000s, public perception began to change. "People began to realize that the Supreme Court couldn't keep the death penalty reliable. Dozens of innocent people were released from death row, [causing] jurors, prosecutors and governors [to] put the brakes" on executions.

Indeed, some prominent defenders of the death penalty have changed their minds. Conservative Republican Mark Earley presided over the execution of 36 men as attorney general of Virginia from 1998 to 2001. Earley now opposes capital punishment.

"We've had so many exonerations over the last 10 to 15 years — over 150," he says. "We can't have a system where there's a question about putting someone to death who may be innocent or who ... clearly didn't receive a fair trial."

'We Made A Horrible Mistake'

Earley says that "conceptually," he can still make an argument for the death penalty for certain crimes, but he adds that having been involved in the criminal justice system throughout his life, his concern is, "We get it wrong sometimes, and in the death penalty, we just can't get it wrong."

George Kendall, a defense lawyer who has litigated death cases for more than 40 years, said that the swing against the death penalty is not just because of the 156 death row inmates who have been exonerated or the advent of DNA evidence. It's the nature of the cases that have disintegrated on further examination.

"We're not talking about a universe of cases where there was maybe one detective working the case on Friday afternoons," Kendall notes. "We're talking about cases that were the largest priority in the office, and that's what has really shaken people. That cases that really look as solid as they can be ... fast-forward 20 years later, and some new technology comes around, and, 'My God, we made a horrible mistake.' "

Many still think that the death penalty can be fairly and equitably imposed, among them, Arkansas Gov. Asa Hutchinson. He is committed to the death penalty as an important — if rare — punishment. He cites the Boston Marathon bombing as the kind of crime deserving the ultimate punishment.

"We are a nation of laws, and our Legislature authorizes the death penalty in certain prescribed cases that are very specific with aggravated circumstances," he says. "I think the average citizen recognizes that there are some crimes that cross the boundaries of civilized society and that recourse is appropriate."

Judge Alex Kozinski, of the 9th Circuit Court of Appeals, with jurisdiction over West Coast states, agrees. But, he observes, "there are so many contradictions in death penalty jurisprudence that it's going to be very difficult to find a way back."

The Supreme Court has "put in so many controls and conditions that it is very hard to administer it without a lot of expense, a lot of delay, and a lot of missteps," he explains. And he predicts that the expense will be the death penalty's downfall, that at some point, "the taxpayers are going to say, 'This isn't worth it.' "

Indeed, that seems to have been the view of the conservative legislature in Nebraska, which earlier this year voted to abolish the death penalty.

Then too, fewer juries are handing down death sentences, in part because fewer prosecutors are seeking them.

Only a few localities are still enthusiastic about capital punishment. "It's down to counties," says death penalty lawyer Kendall.

According to data compiled from the Death Penalty Information Center, 21 counties were responsible for all of the executions in the United States in 2015; that's less than 1 percent of all counties in the United States. And of those 21, five were responsible for 40 percent of all executions this year.

Things have changed even in Texas, Kendall maintains. "There are only a handful of prosecutors that use the death penalty in Texas any longer. A great majority of the prosecutors in this country have never used the death penalty and are never going to ... even in the South."

The Unintended Consequences Of Death Penalty Restrictions

And yet, the numbers of prisoners waiting on death row has continued to grow. Because of the long-term backlog, there are now some 3,000 men and women awaiting execution.

That's just one of the internal contradictions and unintended consequences that mark the death penalty in the United States today.

For another, look at lethal injection, the execution method now used by every capital punishment state and the federal government. Oklahoma medical examiner Jay Chapman developed the method in 1977 as a more humane one than the electric chair, hanging, firing squad or gas chamber.

Chapman devised a three-drug lethal injection combination, and other states and the federal government quickly adopted it. The lethal cocktail sometimes proved unreliable, however, with botched executions taking place in several states, including Oklahoma in 2014.

By early 2015, Oklahoma was in the U.S. Supreme Court defending a newer version of its cocktail from a challenge brought by death penalty opponents. The state devised the new version because it was becoming impossible to get one of the drugs that had been used previously.

At oral argument, Justice Samuel Alito put the blame for that squarely on the shoulders of death penalty opponents, who he suggested were putting political pressure on drug companies.

"Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty?" he asked.

Oklahoma's lawyer assured the court that the only new substitution drug in the state's protocol worked just as well as the original drug, and the high court subsequently gave the state the green light to go ahead with the new drug combination in its planned execution of convicted killer Richard Glossip.

But two hours before Glossip was to be put to death, the governor discovered that there had been a substitution for a second drug, and this one was not part of the approved protocol. Moreover, state officials also learned that the same mistake had been made in an execution months earlier as well. Glossip, who had already eaten his last meal and stripped down to his boxer shorts, was returned to his cell, and the governor ordered a halt to all executions well into 2016.

Not Comfortable In The Business Of Killing

The Oklahoma experience is emblematic of the difficulties states are having.

First, it is increasingly difficult to get lethal injection drugs. Pharmaceutical companies are refusing to sell their product for use in executions because, as Judge Kozinski explains, it is simply inconsistent with their mission. "Drug companies are in the business of healing, and they are not comfortable — either morally or just economically — being in the business of killing," he says.

Kozinski, who most recently wrote the decision allowing lethal injections to go forward in California, views the attempt to make execution look more merciful as a fool's errand.

"People are just not comfortable with the idea of what execution involves: taking somebody out and killing them," he observes. "So if you can make it look like it's just like a gentle sleep, I think the perception would be, 'We're not doing anything violent.' But of course we are. We are killing a human being and this is as violent a thing as society can do."

The difficulty in obtaining drugs, and getting trained medical personnel to participate in executions, has led states to adopt more and more secrecy about the drugs they are using, where they get them and what procedures they use. Hutchinson, the Arkansas governor, says it's essential to keep the source of the drugs confidential.

"The reason for that is the source of the drug would dry up because of pressure that mounts from anti-death-penalty advocates, boycotts, threats," he says.

But that very secrecy leads to more challenges from death penalty opponents, and more delays, while at the same time, acceptable drugs exceed their expiration dates. And there are other problems.

"What's happening is all these things are being done in secret and they're being done poorly, and they're coming apart at the time of execution," says Columbia's professor Liebman.

Oklahoma's experience is Exhibit A in Liebman's argument.

The other internal contradiction in capital punishment is the trial and appeals process itself. In an effort to make death penalty cases more error-free, reserve it for only the worst of the worst and make the system more uniform, the Supreme Court added more protections for the defendant and more appellate reviews.

But when that made the process longer and more complicated, there was a reaction in Congress, and in 1996 President Clinton signed the Antiterrorism and Effective Death Penalty Act with the specific aim of cutting death penalty delays.

But "it's had just the opposite effect," notes death penalty opponent Kendall.

At the time the law was passed, the average time from death sentence to execution was about 10 years, according to statistics compiled by the Death Penalty Information Center. Today it's close to 17 years.

Death penalty supporters like Hutchinson see these delays as anathema — "cruel to the victims' families," hard on the defendant, and "not a good reflection on our system of justice in America."

Death penalty opponents, however, see the delays as a form of providence. "Thank God it takes this long," says Kendall, noting that many exonerations have taken "more than two decades before their evidence of innocence could be marshaled and presented and shown."

He points to a particularly uncomfortable example, the case of Henry Lee McCollum, sentenced to death for the 1983 rape and murder of an 11-year-old girl in North Carolina.

In 1993, Supreme Court Justice Antonin Scalia cited McCollum as a poster child for why the death penalty is justified. Compared with what McCollum had done to the girl, Scalia wrote, "How enviable a quiet death by lethal injection!"

Last year, McCollum was exonerated and released from prison after 30 years. DNA from the crime scene that had never been tested was matched to a man in the same neighborhood who was serving a life sentence for a similar crime around the same time.

We're Going To See 'Gaping Holes'

There is little doubt that what is driving the death penalty numbers down in America — both death sentences and executions — is the revelation in recent years that many of the people sentenced to die were innocent. Since 1973, an astonishing 156 death row inmates have been exonerated and released, many of them after decades in prison.

And it's not just a matter of DNA from blood and bodily fluids. Other science used in past prosecutions has also come under fire. This year the FBI conducted a study of 3,000 cases in which FBI lab analysts or agents testified or submitted hair analysis reports prior to the year 2000. The bureau found that in 90 percent of the cases it examined, the analysts' conclusions were erroneous.

Earley observes that as the science keeps advancing, "In every generation we can become the victims of our own hubris, thinking we've arrived and we can't make mistakes and the science we have today is the best science and the criminal justice we have is the best. Fifty years down the road we're going to look back and see some gaping holes."

Earley says that when he presided over 36 executions in Virginia, "I still felt fairly confident that we could always get it right, and I just don't feel that way anymore."

"You know, it's one thing to sit in a Senate chamber as I did in the state Senate and vote for capital punishment bills," he muses. "It's another thing to be on what we call the death watch until midnight."

"It's a gruesome business," he adds. "It's business that even people who are involved with it — at the end of the day — they don't like."

In Arkansas, Hutchinson has set eight execution dates since taking office in early 2015. He says he has personally reviewed each case to make sure the verdict is justified. But because of ongoing court challenges, he has not yet had any of those midnight death watches.

"It's not something you desire to do when you're governor," Hutchinson says, adding that "the criminal justice system is important for our state. It's important to the nation, and it's the job of the governor to carry out the sentence of the jury."

Death penalty opponents seem to believe that the Supreme Court will, sometime in the next decade or so, strike down capital punishment as a violation of the Constitution's ban on cruel and unusual punishment. But there is considerable disagreement among abolitionists as to whether it's wise to push their agenda now.

"It's no longer an 'if.' It's a 'when,' " says ACLU Legal Director Steven Shapiro.

But the future is not yet so clear. Scalia, a staunch defender of the death penalty, has said it wouldn't surprise him if the court were to abolish it. In June, Justice Stephen Breyer called for a reconsideration of whether capital punishment is so rarely and irrationally imposed as to be unconstitutional. But only one other justice, Ruth Bader Ginsburg, joined him.

So, for now, there is no sign that a majority of the justices are prepared to abandon the death penalty entirely if states can overcome the inherent difficulties of imposing it fairly and properly.

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