The nation is on pace to execute the fewest inmates since 1991, as the death penalty’s prevalence continues to slide.
State authorities executed 17 people since Jan. 1, a 32% drop from the 25 executions in the first 10 months of 2015, according to the Death Penalty Information Center.
A combination of forces—a dwindling supply of lethal drugs, a key U.S. Supreme Court decision and growing scrutiny of expert testimony and evidence—have contributed to the slowdown in executions, legal experts said.
States executed 28 people in 2015, down from 35 in the previous year.
Three executions are scheduled in the final months of 2016, two of them in Alabama. Even if they are carried out as planned, the year-end total would be the fewest since 14 people were executed in 1991, according to the Death Penalty Information Center, which takes no position on the death penalty but has criticized how it is administered in the U.S.
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Capital cases have stalled in three states that carried out more than a quarter of all death sentences in the past five years, said Robert Dunham, executive director of the center. Until this year, Alabama, Delaware and Florida were the only states that allowed judges final say over death sentences. In January, the U.S. Supreme Court ruled 8-1 in a case called Hurst v. Florida that a jury must impose capital punishment without second-guessing by a judge, halting executions in that state.
The Florida Legislature revamped its death-penalty law in March, but the Florida Supreme Court struck it down in October, ruling only a unanimous jury may recommend a death sentence. The law allowed a jury to recommend the sentence on a 10-2 vote.
Dozens of the state’s death-row inmates may be eligible for?resentencing under the new requirement, postponing executions, legal experts said.
The Delaware Supreme Court, citing the U.S. Supreme Court’s Hurst opinion, struck down the state’s death-penalty statute in August, ruling the law violated the Sixth Amendment right to a jury trial.
?In May, the U.S. Supreme Court stopped an Alabama execution and directed a state court to reconsider Alabama’s death-penalty law in light of the Hurst ruling. The Alabama Supreme Court upheld the law Sept. 30, calling it “consistent with the Sixth Amendment.”
Meanwhile, in Texas, which typically puts more people to death each year than any other state, the Court of Criminal Appeals halted executions this year over questions about testimony by psychiatric experts and physical evidence, legal observers said.
In one case, the court in August put off the execution of Jeffery Wood for his role in a 1996 robbery in which his confederate shot and killed a convenience-store clerk. The court sent the case to a trial judge to review claims that his conviction was based on false testimony and forensic science.
Adding to the uncertainty, the U.S. Supreme Court is reviewing two legal challenges by Texas death-row inmates over the use of race in death-penalty proceedings and a test for determining intellectual disability. Texas has executed seven people so far this year. It executed 13 people in 2015.
In recent years, a dwindling supply of lethal drugs led states to try new drug combinations, which were blamed for several botched executions.
Executions have been on hold in Arizona, Ohio and Oklahoma as authorities work to establish new death protocols while confronting legal challenges to the secrecy surrounding the drug compounds, said Jordan Steiker, a law professor at the University of Texas who teaches death-penalty law. “I don’t see executions rising quickly anytime soon,” Mr. Steiker said.
Thirty states permit capital punishment, but only four—Texas, Virginia, Oklahoma and Florida—accounted for 60% of executions in a 2013 study by the DPIC. Southern states were responsible for 82% of all executions, researchers found.
Roughly 2,900 inmates were on death row in July 2016, down from a peak of about 3,500 in the early 2000s, according to the Bureau of Justice Statistics and the NAACP Legal Defense and Education Fund.
Death penalty experts say shifting attitudes about the death penalty reflect growing doubts about the validity of capital sentences. To date, about one death-row inmate has been exonerated for every nine put to death, said Mr. Dunham. The growth of the innocence movement has provided inmates with better legal counsel.
A 51% drop in violent crime in the U.S. since the early 1990s, as well as a fresh look at the economics of the death penalty in the midst of a recession, have contributed to the drift, experts said. Some supporters now question whether taxpayer money spent on lengthy appeals and lawyers for inmates—20 times more than the costs of prosecuting life-without-parole cases, according to one 2011 study—is worth what they see as its deterrent effect.
In an annual Gallup poll, 61% of respondents favored the death penalty in 2015, compared with 80% in 1994.
“It’s been this snowball effect,” said Deborah Denno, a professor at Fordham University School of Law and expert on execution methods.
But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty, predicted executions would rise again after Florida’s new death-penalty law emerges from court challenges.
Ballot measures in California and Nebraska will put the death penalty to the voters in November, and voters appear poised to keep the death penalty in both states. New Mexico’s governor has called for a restoration of the death penalty in her state, Mr. Scheidegger added.
“There are currents going in the other direction,” he said.
(Published by The Wall Street Journal - October 24, 2016)