Can President Trump jack up the shrinking execution rate the way Americans seem to want?

Death Penalty Information Center [Click to enlarge]

"The Death Penalty Information Center report notes that public-opinion polls show some decline in support for the death penalty, but the opposition has never achieved close to a majority. And, notwithstanding ambiguous poll numbers, politicians from Trump to Barack Obama understand that support for the death penalty, at least in some form, is less politically risky than opposition to it."

-- Jeffrey Toobin, in today's newyorker.com "Daily Comment,"
"The Strange Case of the Ameican Death Penalty"

by Ken

The Death Penalty Information Center has issued its annual year-end report, and the DPIC press release is headlined: "Death Sentences, Executions Drop to Historic Lows in 2016." And the evidence is striking:

Death sentences, executions, and public support for capital punishment all continued historic declines in 2016. American juries imposed the fewest death sentences in the modern era of U.S. capital punishment, since the Supreme Court declared existing death penalty statutes unconstitutional in 1972. The expected 30 new death sentences in 2016 represent a 39 percent decline from last year’s already 40-year low of 49. The 20 executions this year marked the lowest number in a quarter century, according to a report released today by the Death Penalty Information Center (DPIC). National public opinion polls also showed support for capital punishment at a 40-year low.

“America is in the midst of a major climate change concerning capital punishment. While there may be fits and starts and occasional steps backward, the long-term trend remains clear,” said Robert Dunham, DPIC’s Executive Director and the author of the report. “Whether it’s concerns about innocence, costs, and discrimination, availability of life without parole as a safe alternative, or the questionable way in which states are attempting to carry out executions, the public grows increasingly uncomfortable with the death penalty each year.”

For the first time in more than 40 years, no state imposed ten or more death sentences. Only five states imposed more than one death sentence. California imposed the most (9) followed by Ohio (4), Texas (4), Alabama (3) and Florida (2). Death sentences continued to be clustered in two percent of counties nationwide, with Los Angeles County imposing four death sentences, the most of any county. But death sentences were down 39 percent, even in those two-percent counties.
This year’s 20 executions marked a decline of more than 25 percent since last year, when there were 28 executions. Only five states conducted executions this year, the fewest number of states to do so since 1983. Two states – Georgia, which had the most executions (9), and Texas, which had the second highest number (7) – accounted for 80 percent of all executions in the U.S. Although Georgia carried out more executions than at any other time since the 1950s, juries in that state have not imposed any new death sentences in the past two years.

State and federal courts continued to strike down outlier practices that increased the likelihood a death sentence would be imposed. The United States Supreme Court struck down practices in Florida, Arizona, and Oklahoma that had disproportionately contributed to the number of death sentences imposed in those states. And state courts in Florida and Delaware ruled that portions of their statutes that permitted the death penalty based upon a non-unanimous jury vote on sentencing were unconstitutional.

In fact, a troubling later paragraph in the press release suggests that, if the states were sticking to our own legal principles, the number of people executed in 2016 would have been even lower, considerably lower, than that mere 20:

DPIC’s review of the 20 people executed in 2016 indicated that at least 60 percent of them showed significant evidence of mental illness, brain impairment, and/or low intellectual functioning. This suggests that, in spite of the constitutional requirement that the death penalty be reserved for the “worst of the worst” offenders, states continued to execute prisoners whose mental illness or intellectual disabilities are similar to impairments the Court has said should make a person ineligible for the death penalty.

But it's the paragraph in between the two chunks of the DPIC press release which got the attention of The New Yorker's legal eagle Jeffrey Toobin:

America’s deep divisions about capital punishment were reflected in voters’ action at the ballot box this year. Voters in California and Nebraska voted to retain the death penalty and Oklahoma voters approved a constitutional amendment regarding capital punishment. At the same time, prosecutors in four of the 16 counties that impose the most death sentences in the U.S. were defeated by candidates who expressed personal opposition to the death penalty or pledged to reform their county’s death penalty practices. In Kansas, pro-death penalty groups spent more than $1 million to defeat four state supreme court justices who had voted to overturn several death sentences, but voters retained all four justices.

"It’s a paradoxical moment in the history of the death penalty in the United States," Toobin begins his newyorker.com "Daily Comment" piece, "The Strange Case of the Ameican Death Penalty."

The number of executions has dwindled to just a few, but the voters, even in the most liberal states, seem to want the punishment to remain on the books. That’s the message of the annual report from the Death Penalty Information Center, which produces the most comprehensive analysis of the subject each year.

He proceeds to substantially flesh out the paradoxical picture painted in the DPIC report, then tries to figure out what the heck is going on here. We Americans love us our death penalty -- not least our soon-to-be president -- even as in practice it seems to be becoming all but obsolete. Huh?

The debate over the death penalty seems to have taken on some of the characteristics of the Presidential race this year, as a contest between populists and élitists. Judges play the part of the élites in this particular debate, and the judiciary, as a whole, has shown ever-greater hostility toward approving executions. This year, the Supreme Court ruled for prisoners in several high-profile death-penalty decisions, holding that racial bias infected jury selection, in Foster v. Chatman, a case from Georgia, and rejecting Florida’s system of allowing judges to impose the death penalty even when jurors support life in prison, in Hurst v. Florida. (The Florida legislature sought to correct the defects identified by the Supreme Court in the Hurst case, only to have the Florida Supreme Court overrule the new law as well.) Delaware’s Supreme Court also nullified its state’s death-penalty law this year.

But, as the election results in California and Nebraska illustrate, the voters—the populists—continue to back the death penalty, as does the President-elect. (Donald Trump notoriously called for the execution of the Central Park Five, fourteen-, fifteen-, and sixteen-year-olds who were charged with a high-profile rape and beating, in 1989. Even though the five were later exonerated, Trump, during this year’s campaign, reiterated his belief in their guilt.) The Death Penalty Information Center report notes that public-opinion polls show some decline in support for the death penalty, but the opposition has never achieved close to a majority. And, notwithstanding ambiguous poll numbers, politicians from Trump to Barack Obama understand that support for the death penalty, at least in some form, is less politically risky than opposition to it. (Obama, for example, has supported executions for “extraordinarily heinous crimes.”) Trump’s victory, and those of other Republicans, can only reinforce that view.

So what's the story? Well, it's pretty much what we've already said.

Many factors have led to the decline in the death penalty in recent years: less crime over all, with less fear among the public as a result; DNA exonerations leading jurors to pause before imposing death; the reluctance of pharmaceutical companies to provide lethal-injection drugs and the resulting search (still under way) for a drug protocol that passes constitutional muster; the length and expense of the appeals mandated by the Supreme Court. All those reasons for the decline remain, but so, too, does the United States remain a country that has had the death penalty in effect for virtually all of its history. That’s not likely to change, either. The death penalty may keep shrinking, but it will probably never entirely go away.

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