POLITICS SEPTEMBER 27, 2011
Georgia’s execution of Troy Davis last week was a poignant reminder of the continued presence of capital punishment in the United States. The Davis execution generated extraordinary interest because of troubling doubts about his guilt. Some observers have already speculated that the Davis case might serve as the spark that could reignite the movement to abolish the death penalty. But lost in some of the attention that the execution has generated is the death penalty’s unmistakable and precipitous decline over the past decade. If the battle has not been won by death penalty opponents, they are much closer to their goal than they realize.
Death sentencing has dropped remarkably over the past fifteen years, making what was already a marginal practice (in terms of the frequency with which murder is actually punished with death) an exceptionally rare one. Whereas over 300 defendants were condemned to die per year in the mid-1990s, the most recent figures show a nationwide average closer to 115 per year—a more than 60 percent decline. Executions, too, have fallen significantly—by about 33 percent if one compares 1997-2003 (about 75 executions nationwide per year) and 2004-2010 (about 50 executions nationwide per year).
As a matter of politics, the momentum is clearly on the side of restriction rather than expansion. The past four years have seen the legislative abolition of capital punishment in New Jersey, New Mexico, and Illinois. Numerous other states have come close to abolition or have adopted new limitations on the death penalty (such as Maryland’s requirement that death sentences rest on biological evidence or on a videotaped recording of either the offense or a confession by the offender). As a matter of law, the death penalty appears more fragile jurisprudentially than at any other time in American history, save the brief period of judicial invalidation in the early 1970s.
Indeed, and in addition to legislative action, several members of the U.S. Supreme Court have expressed deep skepticism about the efforts to ensure reliable and fair administration of the death penalty. Moreover, in its decisions abolishing the death penalty as applied to juveniles, offenders with mental retardation, and offenders convicted of raping children, the Court has found those practices contrary to “evolving standards of decency” based on new gauges of contemporary morality—such as elite and professional opinion, international opinion, and polling data—in addition to legislative decisions and jury verdicts. In the cases involving juveniles and offenders with mental retardation, the Court declared the practices contrary to evolving standards despite the fact that a majority of death penalty states did not (yet) prohibit the challenged practice.
In light of this dramatic decline of the American death penalty in practice, politics, and law, rather than portraying the Davis case as the “spark” that could inspire a new generation of anti-death penalty activism, we perhaps should view the Davis case as additional fuel on a fire that is already burning. The difficult question for opponents is whether and how to focus this renewed energy. On the one hand, the Supreme Court’s new approach to gauging “evolving standards of decency” offers a potentially powerful constitutional litigation strategy. If the trend toward abolition and restriction on the state legislative front continues along its current trajectory, it will become easier for abolitionist litigators to marshal evidence of the death penalty’s domestic decline in support of a constitutional ban—and easier for courts to deem capital punishment an outlier practice that falls outside of an emerging constitutional consensus.
This approach is attractive for two reasons: It is likely the only way to uproot capital punishment in certain entrenched jurisdictions (like Texas), and it provides a “backstop” against legislative backsliding in the inevitable moments of anger and fear that attend particularly heinous crimes—in much the same way that the European Convention on Human Rights serves as a backstop against backsliding for European countries, as reinstatement of capital punishment precludes membership in the European Union.
However, constitutional litigation always carries with it the risk of backlash, as a previous era’s experience demonstrates. The movement to abolish American capital punishment in the 1960s and 70s proved to be successful in the short-term but tragic in the long-term. After bringing executions to a halt in 1967 and providing the first extended period in American history without executions (almost a decade), the brief moratorium was followed by enormous reaction. The dying practice of capital punishment returned with a vengeance following the U.S. Supreme Court’s invalidation of prevailing statutes in 1972. Georgia’s Lieutenant Governor Lester Maddox captured the moment by characterizing the Supreme Court’s intervention as a “license for anarchy, rape and murder.” The Supreme Court bowed to the prevailing fury and upheld a new generation of death penalty statutes only four years after its constitutional abolition. The nation’s death row grew five-fold between the Court’s decision and the late 1990s—when it reached its all-time high of over 3,500 death-sentenced inmates.
Nonetheless, there are some reasons to think that court-driven abolition would engender less opposition in the current moment than it did in the early 1970s. The three major forces driving the contemporary decline in the American death penalty are remarkably new to the debate surrounding capital punishment. The first and likely most important precipitant of the recent decline has been the discovery of wrongfully-condemned offenders, particularly the discovery of numerous innocents on Illinois’s death row in the late 1990s. Although concern about executing the innocent is as old as the death penalty, the emergence of sophisticated technology for revisiting past convictions (particularly DNA) has highlighted to an unprecedented degree the extent to which our criminal justice system is susceptible of error, even (and perhaps especially) in capital cases.
The second major development is concern about excessive cost in capital cases. Prior to the recent era, cost concerns were rarely cited as a reason to withhold the death penalty, given the cost of long-term incarceration. But the price of capital punishment has increased dramatically, in part because of the heightened constitutional regulation of capital cases (including at trial and in various appeals), and in part because of the difficulties in translating capital sentences into actual executions. More than ever before, the decision of whether to seek death is as much a financial one (even in high execution states like Texas) as it is an abstract question of just punishment. Unlike the Depression—which produced the most executions in our nation’s history—the recent (and continuing) financial downturn has produced a new reticence to seek the death penalty.
And finally, the current era marks the first time in American history that states have widely embraced life-without-possibility-of-parole (LWOP) as an alternative to the death penalty. Much modern support for the death penalty is rooted in fear of recidivism by offenders (Texas, for example, requires a jury to find that a defendant constitutes a “future danger” to impose the death penalty), and the introduction of LWOP has removed one of the most salient “pro”-death penalty considerations. Indeed, despite continued high polling support for capital punishment among Americans on the simple question of whether murder should be punished by death, the level of support drops significantly when the poll offers LWOP as a specific alternative. Moreover, unlike in the 1970s, violent crime and homicide rates are not on the upswing, despite the widespread unemployment that has attended the nation’s economic crises.
Thus, although American history is replete with (over)confident predictions of the death penalty’s impending demise, the present moment brings the genuine possibility of permanent abolition via judicial decision. The high drama of particular executions makes the American death penalty appear more entrenched and routine than it truly is, and obscures the broader trends and transformations. Such executions can also accelerate the movement toward abolition. And the execution of Troy Davis captures many of the vices—doubt, unfairness, expense—that could well cost the death penalty its life.
Carol S. Steiker is the Henry J. Friendly Professor of Law at Harvard Law School. Jordan M. Steiker is the Judge Robert M. Parker Endowed Chair in Law at the University of Texas School of Law.