There Is No Death Penalty Surge

T he New York Times recently deplored what it called “the surge in executions” in the United States. It offered four reasons for this development: the exclusion of reporters from executions; the use of alternative methods of execution, such as firing squads; the Supreme Court’s refusal to restrict capital punishment; and the Trump administration’s support for maintaining and expanding the death penalty.

However, the data prove that there is no surge, and a major reason is one the Times failed to consider: The penalty takes decades to carry out.

The typical time from the handing down of a death sentence to execution has increased dramatically since the 1980s. In the period 1984-1989, the average wait was seven years; but by 2025, the average elapsed time spent on death row was over 27 years, the longest span in U.S. history. A recent execution in Florida came after the prisoner had spent 39 years on death row, which may be a record.

The main reason for the delay is the procedure used for capital cases — one that is mandated by the Supreme Court. In various rulings, the Court has instituted the requirement of a lengthy two-part trial in which the guilt and penalty decisions are separated. This procedure — effectively two trials in one — requires exceptional and costly preparation by prosecutors. This is followed by years of appeals, including direct appeals to the highest state court with jurisdiction, review by the U.S. Supreme Court, and two additional sets of appeals in the state and federal courts, known as post-conviction review and habeas corpus review. These innumerable appeals cause the carrying out of a capital sentence to take decades.

In truth, what looks to the Times to be a surge in executions is no more than a catching up with decades-old murder cases. Given the time and expense involved, is it any wonder that the states are reluctant or unable to apply the death penalty? The Times says that 20 states conducted executions in the 2010s. But this is misleading. While 27 states have death penalty laws, four governors refuse to sign death warrants, effectively imposing a moratorium on the penalty. Furthermore, nine of the 27 states have executed five or fewer convicts each since 1977. That leaves only 14 states that make at least semi-regular use of capital punishment.

The reality is that public support for the death penalty tracks violent crime rates. Because we have been in a crime trough since the early 1990s, public punitiveness has diminished — and so have death sentences.

Contrary to the Times editorial, which claims that popular support for the death penalty “never disappeared,” Gallup polls show a major decline in approval. Support for the death penalty had reached 80 percent by the late 1980s, when crack cocaine sent murder rates through the roof. But recent opinion surveys find that only 53 percent of Americans favor the death penalty, while 43 percent are opposed. The predictable result is that the number of death sentences has plummeted since the early 2000s.

History demonstrates clearly that public support for harsh punishments is correlated with violent crime rates and ensuing public fear. The high point for executions was in the 1920s and early 1930s, when violent crime soared due to Prohibition gang wars, bank robberies using getaway cars, and the proliferation of powerful semi-automatic and automatic guns (e.g., the infamous “Tommy gun”). Once crime abated in the late 1930s, it remained low for decades — into the early 1960s — and executions tailed off as well. When crime spiked again in the late 1960s and early 1970s, executions probably would have risen too, but the Supreme Court banned capital punishment in 1972 in Furman v. Georgia. The Furman decision was effectively reversed four years later in Gregg v. Georgia and, consequently, executions increased once again by the 1980s.

If the United States were to suffer another crime boom such as the one that ravaged the country from the late 1960s to the early 1990s, it is very likely that there would be a surge in support for capital punishment. But there is no such increase in support now, and there is unlikely to be one, as long as the death penalty remains so costly in time and money and as long as crime rates remain relatively low.