WASHINGTON – After two decades of decline, the death penalty in America has reached a holding pattern.
The numbers of prisoners on death row, new death sentences and executions remained low by historical standards in 2018, according to data released Friday by the Death Penalty Information Center.
At the same time, the report shows slight upticks in death sentences and executions for the second consecutive year. The leveling off indicates that the death penalty’s decline may have bottomed out.
That’s due to the continued regular use of capital punishment in Texas, where 13 of the nation’s 25 executions took place this year, as well as the rejuvenation of executions in states such as Tennessee.
“The death penalty is becoming more geographically isolated,” said Robert Dunham, executive director of the Death Penalty Information Center. “It will continue to decline in terms of its national usage but will continue to be used in these isolated pockets or in particular regions of the country.”
The 42 death sentences projected this year would be up slightly from 2016 and 2017 but far below the peak of 315 in 1996. Similarly, the 25 executions, while up from 23 and 20 the past two years, is down from a peak of 98 in 1999.
Dunham credits a change in public attitudes toward the death penalty for the drop in sentences and executions. While popular in the 1990s, capital punishment is down to 56 percent support in Gallup polling, and fewer than half of those questioned say it is fairly applied.
A generation ago, political candidates “had to be tougher on crime than anybody else. You had to be supporting the death penalty, or you were going to lose,” Dunham said.
By contrast, Washington became the 20th state to abolish the death penalty in 2018, and gubernatorial candidates opposed to its use won elections in Pennsylvania, Oregon and Colorado.
The trend away from the death penalty has leveled off and likely will remain in a holding pattern unless the Supreme Court enters the fray, Dunham said.
While the court has cut back on the death penalty’s use in recent years – exempting youths and those with intellectual disabilities – its new, five-member conservative majority is pro-capital punishment. Associate Justice Brett Kavanaugh replaced retired Justice Anthony Kennedy, whose support wavered at times, in October.
Despite that, the justices each year face difficult death penalty cases. In October, they considered whether a murderer who cannot remember his crime deserves execution. Next year, they are likely to decide whether Texas used outdated medical standards to determine a condemned prisoner’s intellectual capacity.
The broader death penalty debate at the high court was defined in 2015, when the court ruled 5-4 that states could continue to use a controversial sedative that had been implicated in several botched executions.
All four liberal justices dissented, and Associate Justice Stephen Breyer wrote a lengthy diatribe arguing that capital punishment had become arbitrarily applied and imposed disproportionately on minorities. He and Associate Justice Ruth Bader Ginsburg said the court should reconsider the constitutionality of capital punishment.
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