Leaving the death penalty behind

Brian Bensimon

With 17 executions to date, plus 13 scheduled for the remainder of 2017, the U.S. may see a historically low number of executions this year, according to a mid-year review by the Death Penalty Information Center (DPIC). Death sentences, executions, and death penalty support has been waning since capital punishment’s heyday in the late 1990s, and it appears that this trend will continue far beyond 2017. As capital punishment undergoes a historic decline and its constitutionality is challenged, states are adopting death penalty reforms, while some are abandoning the practice altogether, which is making executions and death sentences ever more rare.

Recently, the Florida Supreme Court required the Sunshine State to cease its longstanding unconstitutional practice of delivering death sentences without a unanimous jury decision. As a result, the Florida legislature passed a bill requiring unanimous jury recommendations in order to sentence someone to die, bringing the state in compliance with past court rulings. Roughly 200 Florida death row inmates must be resentenced following the invalidation of their death sentences due to non-unanimous jury recommendations. Previously, judges were allowed to sentence defendants to death without a unanimous jury recommendation. Judges could even override a jury’s recommendation altogether. But following Perry v. State, which struck down this statute, Alabama is left as the only state where judges may still impose death sentences despite a jury’s recommendation.

Yet, even as Alabama maintains the death penalty, its lawmakers are also looking to alter the state’s death penalty practices, which may significantly curtail use. The Alabama legislature sent the Governor a bill that would ban judges from delivering death sentences in cases where the jury recommended life incarceration. This process of judicial override has resulted in politically motivated decision-making in which 92% of all judicial overrides since 1976 were used to overrule life sentences in favor of the death penalty.  This violates a bedrock principle of the criminal justice system whereby a jury of our peers retains the final authority in trials. The legislature’s desire to end judicial overrides signals a greater commitment to the role of jurors in the criminal justice system and may result in fewer death sentences.

It’s not just sentencing changes in states like Alabama and Florida that are causing our record low death penalty usage – the public at large is simply losing faith with the system. According to a 2016 PEW research survey, national support for the death penalty is below 50% for the first time in decades. In light of this development, we’ve seen a number of states walk away from the death penalty.  Connecticut and Delaware have continued to empty their death rows after their death penalty statutes were declared unconstitutional. Adding to the concerns about the system, three people have been exonerated from death row in 2017 so far, bringing the total number of exonerations up to 159 since 1973. However, despite apparent breakthroughs on the issue, there is still reason for concern.

While executions are waning in most places, there are a few outlier states that may witness an uptick in executions. Despite executing the fewest people in two decades in 2016, Texas has already executed 4 individuals in 2017, and Ohio is potentially set to execute five people between now and the end of the year. Gov. Kasich of Ohio even announced an astounding 27 new execution dates through 2021, despite Ohio’s history with botched executions and wrongful convictions. In Ohio, 9 people have been exonerated from death row. Those same exonerees are now urging the Governor via petition to consider the consequences of potentially executing 27 people in the next few years. They know firsthand that the death penalty poses a great risk due to its irreversible nature.

Capital punishment is not going away just yet. Undoubtedly, there will be challenges to face in 2017 and the years to come. But it’s becoming increasingly likely that remaining states will continue to drastically curtail or even eliminate their death penalty programs altogether. The evidence is clear. Wrongful convictions, botched executions, miscarriages of justice, and the death penalty’s high costs have caused the public to lose their support for the death penalty. It’s hopeful that states will respond to this growing sentiment by leaving the death penalty behind once and for all.

Brian Bensimon, a government major at the University of Texas, is a Charles Koch Institute Communications Fellow with Conservatives Concerned About the Death Penalty, a Project of EJUSA.