CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, November 19, 2007

Questioning the State of the Death Penalty

Although polls show that about 65 percent of the public still supports capital punishment in the abstract, the number of juries opting for death has plunged, from 317 in 1996 to 128 in 2005, the latest year for which complete data are available. Similarly, the number of executions has dropped from a modern high of 98 in 1999 to 53 in 2006.

At the same time, experts agree, many prosecutors have become more reluctant to seek the death sentence.

And now the Supreme Court has imposed a de facto moratorium on executions while it considers the claims of two Kentucky death-row inmates (Baze v. Rees) and others that the often-botched lethal-injection method used by most states and the federal government may inflict gratuitous pain on condemned prisoners.

The best that death-penalty opponents can hope for in the Kentucky case is a decision requiring states to devise a less error-prone, more pain-free execution procedure. Whatever the outcome, we will probably see a temporary spike in executions after the moratorium ends.

But four factors -- more significant than anything that the justices have done or will probably do -- seem likely to keep the number of death sentences and executions down in the long run.


  • Irrefutable DNA evidence has exonerated some 15 death-row inmates and almost 200 other men convicted of murder or rape, mostly since the late 1990s. This DNA-evidence revolution, along with non-DNA evidence proving the innocence of a great many more condemned men and other prisoners, has alerted many who support the death penalty in principle to the fallibility of the criminal-justice system and the risk of executing innocent people.

  • More and more murder defendants have competent trial lawyers, thanks to judicial and legislative decisions requiring more state spending on indigent defense and the work of nonprofits and pro bono lawyers. Few defendants with good trial lawyers get death sentences. And the costs to the state of a well-defended death-penalty trial are often much higher than the costs of imprisoning the defendant for life. All of this has made prosecutors more reluctant to seek death.

  • Fewer jurors believe that a death sentence is the only sure way to keep a murderer off the streets. The main reason is that more states -- notably including Texas, which leads the nation in executions -- have provided life imprisonment without the possibility of parole as an alternative.

    (To be sure, a somewhat related reason for the drop in death sentencing -- the greatly diminished public fear of crime after the dramatic decline in crime rates between 1994 and 2005 -- could prove transitory if the rise in crime rates over the past two years accelerates.)


  • Finally, for many centuries people have recoiled against one execution method after another, despite efforts to make them less horrible and less painful. The same seems true now.

Rest of Article. . . [Mark Godsey]

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