by Christopher Zoukis
The number of death row sentences handed out across the country is in decline. Despite this trend, death rows remain crowded. This is the result of a similar, but somewhat unrelated shift: Executions are also in a state of free fall. In fact, there were fewer executions in 2017 than in 23 of the last 25 years.
Professor Lee Kovarsky of the University of Maryland School of Law referred to execution activity as “fall[ing] off a cliff.” According to Kovarsky, there were 23 executions in 2017, compared to 98 in 1999. These numbers represent the dawn of a new era in state-sanctioned murder. Between 1999 and 2001, 83 individuals were put to death in American jurisdictions. Between 2015 and 2017, there were 24 executions.
Kovarsky offers three reasons why executions are in decline. First, judges are finally coming around to “[the] science about wrongful convictions.” The use of DNA analysis in post-conviction proceedings is now standard practice, though prosecutors still tend to fight the use of scientific tools that help ensure the right person is convicted.
Second, it is becoming more difficult for states to perform executions in a constitutionally acceptable manner. Drug manufacturers have taken a proactive role in blocking states from using their products to kill people. This has led to some governments taking extreme measures, such as the state of Arkansas attempting to execute eight people in eight days because its batch of the execution drug midazolam was about to expire. Other states are now investigating the possibility of using fentanyl in executions. It seems that some astute legislators have noticed how deadly fentanyl is, and have figured that if it can kill so many people by accident, it should work great for the execution of condemned prisoners.
Finally, Kovarsky theorizes that the economic reality of the death penalty is catching up to the jurisdictions that make heavy use of it. Death penalty cases are expensive to try and involve extensive post-conviction litigation. As states shift the economic burden to localities, according to Kovarsky, “rising costs should reduce execution activity.”
Despite the decline in executions across the board, certain “capitally active” jurisdictions buck the trend. According to Kovarsky, these are generally larger, wealthier localities that have significant “local muscle memory” when it comes to executions. They are proficient at the death penalty and have successfully “transmitt[ed] institutional knowledge” from one generation of prosecutors to another.
Professor David Dow, speaking of Texas, summed this concept up: “[Texas] executes so many people because it executes so many people. . . . [K]illing people is like most anything else; the more you do it, the better you get. If killing people were like playing the violin, [Texas] would have been selling out Carnegie Hall years ago.”
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