The United States Law Week

Death Row Count at 25-Year-Low as Capital Punishment Erodes (2)

Dec. 14, 2018, 9:30 AMUpdated: Dec. 14, 2018, 7:05 PM

Those awaiting execution in U.S. prisons has hit a 25-year low as 2018 marked a “continuing erosion of the death penalty” nationally, the Death Penalty Information Center said in a report today.

That erosion is shown by the relatively low numbers of new death sentences and executions, as well as midterm election results, legislative actions, and polling reflecting the increasing unpopularity of the ultimate punishment, the report said.

The findings were released just hours after Texas executed Jose Jimenez after his last-ditch appeals failed at the U.S. Supreme Court.

His was the 25th execution this year, making 2018 the fourth year in a row with fewer than 30. That hasn’t happened since the late 1980s-early 90s time-frame. No more executions are expected this year.

“There is a sea change in Americans’ views of the death penalty,” Robert Dunham, the center’s executive director, told Bloomberg Law.

An October 2018 Gallup poll found that fewer than half of Americans—49 percent—think the death penalty is applied fairly. This was the first year that number fell bellow 50 percent.

It’s part of a “sustained trend” in recent years, Dunham said.

The center doesn’t take an official position on the wisdom of the death penalty, but its stance often aligns with those opposed to capital punishment.

Death Row Lows, Elections

Death row decreased in size for the 18th consecutive year, and the number of prisoners facing active death sentences reached a 25-year low, the report said.

Washington became the 20th state to abolish the penalty. Its Supreme Court said the penalty violates the state constitution because it’s imposed “in an arbitrary and racially biased manner.”

But it’s not all great news for death penalty opponents.

For one thing, Gallup also found that 56 percent of Americans still support capital punishment, though that level of support is lower than in recent decades.

Plus, there are different ways to frame the numbers, Kent Scheidegger of the Criminal Justice Legal Foundation pointed out.

“The number of death sentences and the number of executions are up for the second year in a row,” said Scheidegger, a death penalty proponent.

“The decline that began in the late 1990s has bottomed out, and the numbers have started to slowly rise again,” he said in questioning the center’s stated neutrality on capital punishment generally.

Then there are the executions that have been carried out, even if there are fewer of them.

“One of the most concerning facts is that, even as the number of death sentences decreases, and the number of executions goes down, the system seems unable to eliminate arbitrariness and discrimination,” Dunham said.

His group’s report comes as the U.S. Supreme Court has multiple death penalty decisions pending from cases argued in the fall.

Among them are the cases of Vernon Madison, who argues he can’t be executed because dementia has left him with no memory of his crime, and Russell Bucklew, who argues the state’s preferred method of lethal injection would be so painful for him that he’d rather be gassed.

“Death penalty abolitionists had hoped to be able to get the Supreme Court to declare the death penalty unconstitutional,” Dunham said.

“With the new constitution of the court, that appears extremely unlikely anytime soon,” he said—with this year also marking the departure of Anthony M. Kennedy—who sometimes sided with death row inmates—and the arrival of Brett M. Kavanaugh, who is not expected to continue that legacy.

“I think what we can expect to see is that death penalty opponents will increasingly concentrate their efforts at the state level and at the county level,” Dunham said.

That strategy is already producing results.

Voters have removed prosecutors in the most prolific death-sentencing counties, replacing them with “reform candidates,” the report said. Prosecutor candidates who ran as reformers won elections across the country, including against some of the “most aggressive pro-death-penalty prosecutors,” it said.

“The local district attorney elections suggest that, at least in large counties that are trying to come to grips with problems in their criminal justice system, local voters are prepared to replace overly aggressive prosecutors with reformers,” Dunham said. “That’s where death penalty opponents are likely to focus their attention.”

Secrecy, Graphic Executions

“Execution secrecy” is one of the things to keep an eye on in 2019, Dunham said, noting the issue of how states “will deal with the opposition by American pharmaceutical companies to provide them execution drugs.”

Executions in 2018 “dramatized some of the greatest deficiencies in the judicial process,” he said.

He pointed to the Supreme Court’s requirement that inmates challenging their impending executions as cruel and unusual put forth alternative ways to be killed. That’s one of the issues in Bucklew’s case.

“But at the same time that the court placed that burden on the defendants,” the court has “allowed states to retreat into secrecy to withhold the information without which you can’t make that case,” he said.

That’s resulted in botched executions, and prisoners choosing electrocution over lethal injection given fears of how painful lethal injection can be, Dunham said, calling that phenomenon “shocking.”

These recent executions have also drawn the ire of Justice Sonia Sotomayor, who dissented from her colleagues’ decisions allowing them to proceed.

Being electrocuted to death isn’t a great option either, she observed, noting it can also “be a dreadful way to die.”

So one of the things to look for next year, Dunham said, is “how the public responds to more graphic executions, and how the public responds to increasing evidence that states are breaking the law or breaching contracts or hiding behind secrecy to carry out this punishment.”

(adds comments from Scheidegger )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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