The steady decline of America’s death rows
Executions are down amid changes in sentencing patterns and a shift in public opinion
When the state of Arkansas announced plans to carry out eight executions in an 11-day period in April, it drew intense international scrutiny that flared until well after the final lethal injection in the series at the end of the month.
In part, this attention was fuelled by the explanation, offered by state officials, that the timetable was necessary because the supply of one of the state’s lethal drugs was about to expire and authorities had to carry out death penalties for eight men convicted of murder before then. The schedule also stood out for being a modern rarity. Capital punishment in the United States is slowly and steadily declining, a fact most visible in the plummeting number of death penalties carried out each year. In 1999, the country executed 98 inmates, a modern record for a single year. In 2016, there were 20 executions across the U.S., the lowest annual total in a quarter-century. Death sentences also sharply declined. Fewer states that have the death penalty as a sentencing option are carrying out executions, a trend that has continued despite two U.S. Supreme Court rulings in the past decade upholding lethal injection practices. States that would otherwise carry out executions have found themselves stymied by court orders, other legal uncertainty, logistical issues or an ongoing shortage of deadly drugs. Fewer states have it on the books than did a decade ago, and some that retain the practice have declared moratoriums or otherwise stopped executions without formally declaring an outright ban.
Public opinion also has shifted. A Pew Research Center survey last year found that for the first time in almost half a century, public support for the death penalty dipped below 50 per cent.
Other polls found slightly higher support, but the overall numbers remained considerably down from the mid-1990s, when four out of five Americans backed capital punishment.
Another way to see the changing nature of the American death penalty: the gradual decline of death row populations. At the death penalty’s modern peak around the turn of the century, death rows housed more than 3,500 inmates. That number is falling, and it has been falling for some time. New U.S. Justice Department data show that death-row populations shrank in 2015, marking the 15th consecutive year with a decline.
There were 2,881 inmates on state and federal death rows in 2015, the last year for which the Justice Department has nationwide data available. That was down 61from the year before.
States carried out 28 death penalties in 2015, but nearly three times as many inmates — 82 — were removed from death rows “by means other than execution,” the Justice Department’s report states. (A further 49 inmates arrived on death row in 2015.)
In some cases, inmates left death row after being cleared of the crimes for which they were sentenced. Five people sentenced to death were exonerated in 2015, according to the National Registry of Exonerations, a project of the University of Michigan Law School and the Northwestern University School of Law.
Other inmates died of other causes before their executions could occur. In Alabama, three inmates died of natural causes in 2015 and a fourth hanged himself that year inside a prison infirmary, according to corrections officials and local media reports. North Carolina officials say one death-row inmate died of natural causes that year, another was resentenced to life without parole and a third had his death sentence vacated and a new trial ordered.
Death sentences were thrown out in some cases. Four death-row inmates in Maryland had their sentences commuted to life in prison without parole in 2015, a decision made by then-governor Martin O’Malley after that state formally abolished the death penalty.
As death-row populations have been shrinking for years, state and federal prisons overall have seen a more recent decline. According to the Justice Department, 1.53 million people were held in such facilities at the end of 2015, a decrease of 35,500 people from the year before.
Another shift also has occurred: The number of people sentenced to life in prison has ballooned, reaching an all-time high last year, according to a report released this week from the Sentencing Project. The report states that more than 161,000 people were serving life sentences last year, with 44,000 more people serving what are called “virtual life sentences,” defined as long-term imprisonment effectively extending through the end of a person’s life. Similar to overall prison populations, people of colour are disproportionately represented; black people account for nearly half of the life or virtual-life sentences tallied in the report.
The declining use of the death penalty also leaves unanswered how many of the men and women facing the death penalty will ever enter an execution chamber. The time between a death sentence being handed down and carried out has grown significantly.
In 2001, when the American death penalty was at its apex with 3,500 prisoners on death row, they were spending an average of 8.6 years there after receiving their sentence, according to federal data. By 2013, the last year for which full Justice Department data are available, the death-row population fell below 3,000 while their time there ballooned to an average of 14.6 years.
When the U.S. Supreme Court upheld Oklahoma’s lethal-injection procedure in 2015, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented and questioned whether the death penalty is constitutional. In that dissent, Breyer noted the extended periods that elapse before death-row inmates are executed, adding that the time can be even longer for those death penalties actually carried out; for inmates executed in 2014, an average of almost 18 years elapsed between sentence and punishment, he wrote.
“A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital pun- ishment and significantly undermine the rationale for imposing a sentence of death in the first place,” Breyer wrote.
In response, the late justice Antonin Scalia blamed the extended delays on “the proliferation of labyrinthine restrictions on capital punishment” that he said stemmed from the Supreme Court’s own rulings. Scalia wrote that Breyer’s “invocation of the resultant delay as grounds for abolishing the death penalty calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan.”