The Long, Slow Death of Capital Punishment

F or all the attention paid to Amy Coney Barrett’s religion and how it may affect her jurisprudence, we’ve heard quite little from anxious defenders of the death penalty. Many on the left have pointed to her co-authored 1998 law-review article “Catholic Judges in Capital Cases” as an indication of how her faith could affect her job — she wrote that judges should recuse themselves when their religious obligations prevent them from implementing the law — but few on the right seem worried that she might duck out of certain death-penalty cases, especially those involving the capital sentence itself. The article definitely hasn’t prompted the conservative scrutiny it would have if it had been about, say, guns or abortion.

A new report from the Justice Department’s Bureau of Justice Statistics (BJS) suggests a reason: The death penalty simply isn’t the national political issue it used to be, because executions are dropping off across the country on their own.

We’re a country with 330 million people and more than 15,000 murders and non-negligent manslaughters per year. In 2018, we executed . . . 25 people, 13 of them in Texas. The preliminary tally for 2019 is 22. Aside from a court-imposed moratorium that lasted from the late ’60s to the late ’70s, and the two decades we spent making up for lost time thereafter, the trend has been downward since the Great Depression.

The number of people on death row is headed down, too, mirroring trends in overall incarceration:

Also declining is the number of states where capital punishment is a standard practice or even a possibility. In 2018, the Washington supreme court killed the state’s death penalty, and Delaware moved its last prisoner under a death sentence to life without parole. Last year, the governor of California, a state that hasn’t executed anyone since 2006, announced a moratorium too. Here’s the map as of the end of 2018:

Basically, every aspect of the death penalty is looking anemic. It takes longer to kill criminals than it used to: The “average elapsed time from sentencing to execution almost tripled from 1988  (6.7 years) to 2018 (19.8 years),” according to the BJS. And more prisoners are being removed from death row by other means than are being executed: As mentioned above, 25 were put to death in 2018; meanwhile, 64 had their death sentences revoked through various channels (commutations, courts overturning laws or convictions, etc.), and another 24 died in ways besides execution.

Where does this come from? Part of it is that crime is down; despite growth in the U.S. population, the number of murders has fallen markedly from its high point in the early 1990s. And part of it is probably that support for the death penalty has weakened over the past quarter century, though most Americans are still in favor of it. Here’s a trend line from the General Social Survey:

Of course, none of this speaks to the underlying question of whether the death penalty is a good thing. Like most Americans, I’m not particularly bothered when people who are clearly guilty of the worst imaginable offenses are put to death. Sometimes it’s the only just punishment. Yet I’m not shedding too many tears over capital punishment’s natural decline. Reinvigorating the death penalty, especially in states where it’s already gone, might be a fight that’s just not worth having.

A less prominent death-penalty debate spares us a lot of acrimony over racial disparities, which we could use less of at the moment; some research suggests that the race of the victim may play a special role in these cases, with murderers of whites being more likely to be put to death than murderers of blacks. (About two-fifths of death-row inmates are black, as were 34 percent of those executed since 1977. These numbers are far higher than the 13 percent of the general population that is black, but lower than the roughly half of murder offenders who are.) And since any deterrent effect of the death penalty is at best unproven, we don’t seem to be losing an important crime-prevention technique either. Not to mention the ever-present possibility of executing an innocent person — though, as I’ve discussed elsewhere, the threat of the death penalty also draws attention to these cases, increasing the chance that exculpatory evidence will be found if it exists.

We will never resolve the moral and empirical questions surrounding capital punishment. But the practice might just fade out on its own.