A little more than one generation after the United States Supreme Court reinstalled the death penalty as a sentencing option in criminal cases, and despite otherwise strong support for tough-on-crime laws, capital punishment in America is markedly on the wane. Executions are down dramatically. Death sentences are being recommended less frequently by juries and endorsed less often by judges. And wrongfully convicted death-row inmates in increasing numbers are being released from prison as a result of DNA testing and other exonerating evidence. Today, nearly half of the jurisdictions in the United States have not had an execution within the past 10 years.The statistics go on and on. Executions in America were down 12 percent in 2010 from 2009. They are down approximately 50 percent since 1999. Only seven states carried out more than one execution in 2010 -- almost all in the South or Southwest.The reasons for the decline are numerous and often interconnected. Richard Dieter, director of the Death Penalty Information Center, a clearinghouse for information about capital punishment, told me Thursday: "In essence, I believe that one issue, innocence, caused a cascade of other changes, such as improved quality of defense, more careful appeals, more thorough trials, and more acceptable alternatives for juries, all of which have contributed to the declining use of the death penalty."Indeed, in Texas, there have been 41 death-row exonerations in the past nine years, 21 alone in Dallas County. The Innocence Project, whose lawyers and investigators scour state court case files across the country for evidence of wrongful convictions, reported that its organization generated 29 exonerations in 2010. These are just some of the examples where the criminal justice system in the past has demonstrably made grievous errors in processing capital defendants. And what each of those specific examples has done is encourage both a renewed interest in examining dubious convictions (which in turn leads to more exonerations) as well as a heightened commitment by prosecutors, lawmakers, juries and judges to get capital cases right in the first place.Even though general support for the death penalty remains relatively high -- 64 percent of Americans supported it in an October Gallup poll and only 29 percent said there were opposed -- political and legal developments over the past decade or so have contributed to the slowing rate of executions and death sentences. As more Americans have become aware of parole restrictions -- as they have come to learn that "life sentences" can, indeed, be "life sentences -- they have eased their eagerness for executions. When given an option between capital punishment and life in prison, Gallup's respondents split almost evenly: 49 percent favored the death penalty, 46 percent favored the life sentence.These numbers are impacting the political dynamics of the debate over capital punishment. In 2007, for example, New Jersey became the first state to abolish capital punishment since it was reinstated by the Supreme Court in 1976 in Gregg v. Georgia. (Four years earlier, in Furman v. Georgia, the court had banned the death penalty across the country as a violation of the "cruel and unusual" clause of the Eighth Amendment). In Maryland, there has been a practical moratorium on capital punishment for at least the past year -- and it's going on six years since the last execution there. In New York, a judge struck down the state's capital statute in 2004, prompting lawmakers to study the matter in great depth but not reinstate it.Several other death penalty states, including Kansas, South Dakota and Colorado, have seen in just the past two years meaningful legislative debates over whether to repeal capital punishment. In Illinois, following a then-Gov. George Ryan-imposed moratorium against capital punishment arising from systemic abuse in the criminal justice system, lawmakers are poised to repeal the death penalty, a striking turnaround in a decade for a state that once had hundreds on its death row. Even in Texas, perpetually at or near the top in executions each year, serious talk about the repeal of the death penalty has emerged from the ashes of one embarrassing capital case after another.And while there is discernible movement away from the death penalty in some jurisdictions, there does not appear to be much movement toward it anywhere in the United States. In fact, even some conservative politicians and advocates have begun to make a fiscal case against the practice. In their view, the death penalty is simply too expensive to implement and an unnecessary drain upon precious state resources. California has spent, by many accounts, hundreds of millions of dollars since capital punishment was reinstated. Other states have spent similar amounts sending men and women to death row. The cost of a capital case, including appeals and other expenses, exceeds by an order of magnitude the cost of a non-capital murder case.Dieter says this trend could ultimately carve out a renewed push by the federal courts to again outlaw capital punishment everywhere. He told me: "If the current trend of fewer states using the death penalty continues, I believe the Supreme Court will eventually follow its Eighth Amendment precedents and find that our standards of decency have evolved to the point that the death penalty is a cruel and unusual punishment. The number of states banning capital punishment will have to increase to numbers comparable to those that barred the execution of juveniles and the mentally retarded." He's referring here to the two big death penalty cases of the past half-decade or so in which the Supreme Court has sharply limited the circumstances in which capital punishment may be applied.
Analysis byAndrew Cohen