Why the Death Penalty Is Slowly Dying


Adam Cohen
By: Adam Cohen
Time Magazine
Tuesday, January 3, 2012

California is having problems with its death penalty. It hasn’t executed anyone since 2006, when a federal court ruled that its method of lethal injection was improper and could cause excessive pain. The state spent five years coming up with a better method — and last month, a judge threw that one out too. One indication of just how bogged down California’s capital-punishment system is: the inmate who brought the latest lethal-injection challenge has been on death row for 24 years.

It isn’t just California. The Death Penalty Information Center reported last month that the number of new death sentences nationally was down sharply in 2011, dropping below 100 for the first time in decades. It also reported that executions were plummeting — down 56% since 1999.

There has long been an idea about how the death penalty would end in the U.S.: the Supreme Court would hand down a sweeping ruling saying it is unconstitutional in all cases. But that is not what is happening. Instead of top-down abolition, we seem to be getting it from the bottom up — governors, state legislatures, judges and juries quietly deciding not to support capital punishment.

Ground zero for this grassroots movement is Illinois. In 2000, the state’s Republican governor imposed a moratorium on executions after several inmates on death row were found to be innocent. In early 2011, Illinois’s Democratic governor signed a bill passed by the state legislature repealing its death penalty.

Illinois is part of small boomlet of repeals at the state level. New Jersey abolished its death penalty in 2007. New Mexico abolished its death penalty in 2009. There are now 16 states — or about one-third of the country — that have abolished capital punishment. Even in states that still have the death penalty, it has not been faring well. Last year, Oregon’s governor declared a moratorium on all executions in his state, saying the system in place “fails to meet basic standards of justice.” Other governors are taking a more ad hoc approach. In September, Ohio Governor John Kasich, a conservative Republican who once hosted a Fox News show, commuted the death penalty of a convicted killer, citing his youth, when he committed his crime, and his troubled upbringing.

There are several reasons we seem to be moving toward de facto abolition of the death penalty. A major one has been the growing number of inmates on death row who have been exonerated — 139 and counting since 1973, according to a list maintained by the Death Penalty Information Center. Even many people who support capital punishment in theory balk when they are confronted with clear evidence that innocent people are being sentenced to death.

Another factor is cost. Money is tight these days, and more attention is being paid to just how expensive death-penalty cases are. A 2008 study found that California was spending $137 million on capital cases — a sizable outlay, particularly since it was not putting anyone to death.

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Then there is the ick factor. In other eras, executions were public spectacles — and people turned out in droves. But we tend to be more squeamish these days. Ohio briefly suspended its death penalty in 2009 after a gruesome episode in which technicians spent two hours trying, without success, to find a vein to use to administer a lethal injection.

According to the polls, a majority of the country has not yet turned against the death penalty — but support is slipping. In 1994, 80% of respondents in a Gallup poll said they supported the death penalty for someone convicted of murder. In 2001, just 61% did. In polls where respondents are given a choice between the death penalty or life without parole and restitution, a majority has gone with the non-death option.

Many opponents of the death penalty are still hoping for a sweeping Supreme Court ruling, and there is no denying that it would have unique force. Five Justices, with a stroke of their pens, could end capital punishment nationwide. But bottom-up, gradual abolition has other advantages. What we are seeing is not a small group of judges setting policy. It is a large number of Americans gradually losing their enthusiasm for putting people to death.

Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.