Signs of an apparent decline in the death penalty can be found in falling numbers of executions and death sentences, in court rulings in two states finding capital punishment laws unconstitutional and in the U.S. Supreme Court’s renewed vigilance over the ultimate sanction.
Since 1999, when a record 98 inmates were put to death across the country, the number of Death Row executions has dropped to 59 in 2004. The year even finished with no executions in December, the first time since July 1994 that such an event occurred.
But the falling numbers don’t tell the whole story. The death penalty still has public backing and strong proponents. On Jan. 26, Connecticut is scheduled to hold the first execution in New England in more than four decades. On that date, serial killer Michael Ross, 45, faces lethal injection in the killings of eight women in Connecticut and New York in the early 1980s.
This week, Massachusetts Gov. Mitt Romney said he would present to state lawmakers early next year a bill that would bring the death penalty to his state–one of a dozen in the United States without it. The measure is thought to have little chance of passage.
In Virginia, long one of the nation’s execution leaders, Republican gubernatorial hopeful and Atty. Gen. Jerry Kilgore has proposed eliminating the state’s “triggerman” rule, so even those defendants who do not actually commit a murder can face execution.
And during 2004 the federal Death Row grew by about 30 percent, from 26 condemned prisoners to 34.
Reshuffling of deck
“It all adds up to a strong, dramatic shift, though not the end of the death penalty,” said Richard Dieter, the executive director of the Death Penalty Information Center, a Washington, D.C., non-profit group critical of how the death penalty is applied.
The lack of an execution in December, traditionally a slow month for executions because of the holidays, appeared to be more a fluke this year than a sign of any trend; several prisoners scheduled to die were granted stays.
Death sentences have fallen since 1998, when 300 inmates received such convictions. In 2003, the total was 144, and Dieter projects 130 for 2004.
Because the declines in executions are small, it is hard to gauge their statistical significance. After all, had some of the executions scheduled for December taken place, the execution decline would have been negligible.
“When you’re dealing with numbers this small, those kinds of random fluctuations don’t matter that much, especially with states,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports capital punishment.
Behind the statistics are several factors, all of them tied to new debate over the death penalty–a debate no longer focused on whether it is right or wrong but centered on questions of accuracy and fairness.
That debate gained urgency in early 2000, when Gov. George Ryan declared a moratorium on executions in Illinois, and it has continued hotly as the number of Death Row exonerations steadily rises.
Five Death Row inmates were exonerated in 2004. Among them: Gordon “Randy” Steidl, who had been convicted of two murders in Downstate Illinois, and Ernest Willis, who spent 17 years on Texas’ Death Row for an arson murder but was released after experts determined the fire was not arson at all.
“These numbers are the result of all these things,” said Dieter. “It has shaken people’s confidence, and there’s a hesitance going forward.”
Courtroom scene
Dieter and others believe that juries have grown wary of imposing capital punishment verdicts and that judges increasingly are granting condemned inmates hearings on issues that, in the past, they may have done without.
Scheidegger disagrees. He attributes the reduction in such convictions to the drop in the homicide rate. He also cites anecdotal evidence: claims by some prosecutors that fewer of the most heinous murders more likely to lead to death sentences are occurring.
“If juries are more reluctant to impose the death penalty in those relatively few cases where there’s a lingering question, that’s not a problem,” he said.
State-by-state trends are difficult to interpret. Missouri, whose death chamber traditionally has been one of the nation’s busiest, had no executions in 2004. One factor: the state’s Supreme Court tipped Democratic two years ago.
Appeals dropped
Ohio executed seven inmates in 2004, more than double its 2003 total of three and more than it has had for decades. But it, too, was a fluke. Two Death Row inmates gave up their appeals and were executed in 2004.
“The common perception is because Ohio had seven, something different is happening here,” said Deputy Atty. Gen. James Canepa. “We are by no means on any sort of breakneck pace in executing people.”
If anything has changed in Ohio it is the pace of death sentences. Since life without the possibility of parole became a sentencing option in 1996, capital punishment convictions have fallen from 10 to 12 a year to three to eight, said Canepa.
“What we’ve seen,” he said, “are less death verdicts.”
In New York and Kansas, state courts ruled death penalty laws unconstitutional. In New York, where restoring such punishment was a cornerstone of Gov. George Pataki’s first campaign, the state has yet to execute a prisoner and the legislature does not appear eager to rewrite its flawed law.
Kansas law-enforcement officials, stung by their Supreme Court’s Dec. 17 decision striking down the law, have already asked the judges to reconsider. Officials may also appeal to the U.S. Supreme Court.
In many ways, the death penalty is largely a Texas matter, and until its pace slows, the Lone Star State will remain the nation’s leading executioner.
In 2004, Texas had 23 executions–more than a third of the nationwide total. Of the nation’s first 13 executions scheduled for 2005, the state accounts for nine of them, according to Dieter and Texas prison records.
But the U.S. Supreme Court appears to be keeping a closer eye on Texas–and the death penalty in general. Over the past year, the justices have considered appeals from three condemned inmates in the state and appear to be frustrated with Texas-style justice.
It is even hearing one case for the second time in two years.
Court not as tolerant
“It’s extraordinary what’s been happening,” said David Dow, a law professor at the University of Houston who represents Death Row inmates.
“What you basically have,” he added, “is a fairly conservative court that has been rebuking [Texas] in death penalty cases–and by fairly decisive margins.
“The court seems to be less tolerant of things here,” the law professor added.
Still, even with the new scrutiny, Dow does not see dramatic change.
“I have a sense that there’s a bigger number of people interested in change,” he said. “It used to be a voice in the wilderness. Now, it’s a chorus of voices.”
Having banned the execution of the mentally retarded in 2002, the Supreme Court is considering another dramatic winnowing of the death penalty: banning the execution of juvenile offenders.
That would fall in line with several public statements by justices expressing concern about how capital punishment is applied–and reflect the uneasiness expressed in public opinion polls.
“Once something doesn’t work, people stop using it,” said Robin Maher, the director of the American Bar Association’s death penalty representation project. “The public has seen so many mistakes … it’s questioning the use of the death penalty itself.”
