Fewer death penalties: Death Penalty Decline

 September 11, 2001

THE MARKED drop in executions during the past two years is cause for some cheer among opponents of the death penalty. In 1999, 98 persons were put to death; so far this year 48 have been executed, with another 14 scheduled to die. The decline, which began nationally in 2000, is particularly notable in states that had been the most active executioners. Texas, which executed 40 persons last year, has executed only 12 in 2001, with six more scheduled to die. Virginia, which executed 14 in 1999 and eight last year, has killed one and plans one more execution in 2001.

Part of the drop can be explained by the morbid demographics of death row. Before Congress and the courts curtailed federal court review of state convictions, death cases took long periods of time to reach executions, and a backlog of cases developed. Once Congress gave states the green light in 1996, however, the more aggressive death penalty states began clearing that backlog, creating a spike in the number of executions. To some extent, the current decline reflects the natural drop following that spike. But other, more encouraging factors are also at work. After the exoneration of several death row inmates, judges in several states appear to be examining cases more carefully. In addition, fewer death sentences are being handed down, a function of abolition of parole by a number of states and the consequent ability of jurors to ensure that a sentence of life in prison means what it says.

These are encouraging trends. They are also reversible. The past few years have seen a remarkable drop in crime, which -- in combination with the DNA exonerations -- has helped change public attitudes toward the criminal justice system. A rise in the crime rate could just as quickly cause renewed support for capital punishment and make it harder for judges -- particularly elected judges -- to take the kind of care with cases that the current climate permits. The number of people put to death could rise again just as quickly as it is now dropping. That's why systemic reform is crucial. Proposals at the federal and state level to make the application of the death penalty fairer and more judicious could help lock in the current, more cautious attitude toward capital punishment and enshrine it in law. These reforms would ensure decent legal representation for capital defendants and post-conviction review robust enough to catch errors. Capital punishment wouldn't become fair or foolproof or, in our view, morally defensible. But the risk to the innocent would decline.