The decline and fall of the American death penalty

Fewer people were executed in 2020 than in any year for nearly three decades, and fewer people were sentenced to die than at any point since the Supreme Court created the modern legal framework governing the death penalty in 1976. Those are two of the striking findings in the Death Penalty Information Center’s (DPIC) annual report, which was released on December 16.

One significant reason so few people were executed in 2020 is the Covid-19 pandemic — which has slowed court proceedings and turned gathering prison officials and witnesses for an execution into a dangerous event for everyone involved. But even if 2020 is an outlier year due to the pandemic, DPIC’s data shows a sharp and consistent trend away from the death penalty since the number of capital sentences peaked in the 1990s.

Death Penalty Information Center

In total, only 17 people were executed in 2020, a number that would be much lower if not for the Trump administration resuming federal executions this year for the first time in nearly two decades. 2020 is the first year in American history when the federal government executed more people than all of the states combined: 10 of the 17 people executed in 2020 were killed by the federal government.

Only five states — Texas, Alabama, Georgia, Missouri, and Tennessee — conducted executions in 2020. And of these five states, only one, Texas, killed more than one person on death row.

The trend away from new death sentences and executions has continued despite two recent significant pro-death penalty opinions from the Supreme Court. The Court’s decisions in Glossip v. Gross (2015) and especially in Bucklew v. Precythe (2019) make it much more difficult for death row inmates to claim their executions violate the Constitution’s prohibition on cruel and unusual punishments.

Nevertheless, it remains to be seen whether the longstanding trend away from the death penalty will eventually be reversed by the Court’s new 6-3 Republican majority. For the moment, the trend appears to be robust even in the face of significant doctrinal shifts by the Supreme Court.

Why has the number of death sentences and executions declined so sharply?

There are many factors that likely contribute to the death penalty’s decline. Among other things, crime fell sharply in recent decades — the number of murders and non-negligent manslaughters fell from nearly 25,000 in 1991 to less than 15,000 in 2010. Public support for the death penalty has also fallen sharply, from 80 percent in the mid-90s to just 55 percent in 2020, according to Gallup. And, beginning in the 1980s, many states enacted laws permitting the most serious offenders to be sentenced to life without parole instead of death — thus giving juries a way to remove such offenders from society without killing them.

Yet, as Duke University law professor Brandon Garrett argues in End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, these and similar factors can only partially explain why the death penalty is in decline. Murders, for example, “have declined modestly since 2000 (by about 10 percent),” Garrett writes. Yet “annual death sentences have fallen by 90 percent since their peak in the 1990s.”

Garrett argues, persuasively, that one of the biggest factors driving the decline in death sentences is the fact that capital defendants typically receive far better legal representation today than they did a generation ago. As Justice Ruth Bader Ginsburg said in 2001, “People who are well represented at trial do not get the death penalty.”

The Supreme Court briefly abolished the death penalty in Furman v. Georgia (1972). Though Furman produced a maze of concurring and dissenting opinions and no one opinion explaining the Court’s rationale, many of the justices pointed to the arbitrary manner in which death sentences were doled out. The particular death sentences before the Court in Furman, Justice Potter Stewart wrote, “are cruel and unusual in the same way that being struck by lightning is cruel and unusual” because death sentences appeared to be handed down to just a “random handful” of serious offenders.

Four years later, in Gregg v. Georgia (1976), the Court allowed states to resume sentencing serious offenders to death but only with adequate procedural safeguards. Gregg upheld a Georgia statute that allowed prosecutors to claim that a death sentence is warranted because certain “aggravating circumstances” are present, such as if the offender had a history of serious violent crime. Defense attorneys, in turn, could present the jury with “mitigating circumstances” that justified a lesser penalty, such as evidence that the defendant had a mental illness or was abused as a child. A death sentence was only warranted if the aggravating factors outweigh the mitigating factors.

This weighing test is now a centerpiece of capital trials in the United States, which means the primary job of a capital defense lawyer is often to humanize their client in the eyes of a jury. Defense counsel must explain how factors like an abusive upbringing, mental deficiencies, or personal tragedy led their client to commit a terrible crime.

Doing this well, Garrett argues, “takes a team.” It requires investigators who can dig into a client’s background, and it often requires social workers or other professionals who “have the time and the ability to elicit sensitive, embarrassing, and often humiliating evidence (e.g. family sexual abuse) that the defendant may have never disclosed.”

And yet, especially in the years following Gregg, many states didn’t provide even minimally competent legal counsel to capital defendants — much less a team that included a trained investigator and a social worker.

Virginia, for example, has executed more people since the Gregg decision than any state except for Texas. A major reason is that, for quite some time, Virginia only paid capital defense lawyers about $13 an hour, and a lawyer’s total fee was capped at $650 per case.

In 2002, however, the state created four Regional Capital Defender offices. And, when state-employed defense teams couldn’t represent a particular client, the state started paying private lawyers up to $200 an hour for in-court work and up to $150 an hour for out-of-court work. As a result, the number of death row inmates in Virginia fell from 50 in the 1990s to just five in 2017.

Virginia’s experience, moreover, was hardly isolated. As Garrett notes, many states enacted laws in the last four decades that provided at least some defense resources to capital defendants.

Brandon Garrett

And in states that did not provide adequate resources to defendants, several nonprofits emerged to pick up the slack. In Texas, for example, an organization called the Gulf Region Advocacy Center (GRACE) was formed in response to a notorious case where a capital defense lawyer slept through much of his client’s trial.

Some of these nonprofit lawyers have become minor celebrities within the legal profession. At least one, Bryan Stevenson, is arguably a celebrity well beyond the world of attorneys — Stevenson was played by Michael B. Jordan in the movie Just Mercy.

Capital defendants, in other words, are much less likely to be left alone — or practically alone with an incompetent lawyer — during a trial that will decide if they live or die. And that means that they are far more likely to convince a jury that mitigating factors justify a sentence other than death.

The future of the death penalty is now very uncertain thanks to the Supreme Court’s new majority

Cases like Furman and Gregg are rooted in the Eighth Amendment, which prohibits “cruel and unusual punishments.” This amendment’s use of the word “unusual” suggests that the kinds of punishments forbidden by the Constitution should change over time, as certain punishments fall out of favor in society and thus become more unusual. As Chief Justice Earl Warren wrote in Trop v. Dulles (1958), the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Under this framework, there’s a very strong argument that the death penalty is unconstitutional. After all, if a punishment becomes more constitutionally dubious as it becomes less common, what should we make of a punishment that was only carried out 17 times in the last year and that has been used less and less frequently over the last three decades?

The Supreme Court, however, almost certainly cut off any chance that this argument could prevail in its 5-4 decision in Bucklew.

Although Bucklew does not explicitly overrule the long line of Supreme Court decisions applying Warren’s “evolving standards of decency” test, Justice Neil Gorsuch’s majority opinion in Bucklew ignores that framework altogether and substitutes a different, much more narrow approach to the Eighth Amendment.

“Death was ‘the standard penalty for all serious crimes’ at the time of the founding,” Gorsuch wrote in Bucklew. And, while his opinion does list some methods of execution — “dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive” — that violate the Eighth Amendment, Gorsuch argues that these methods of execution were unconstitutional because “by the time of the founding, these methods had long fallen out of use and so had become ‘unusual.’”

Warren’s framework, in other words, asks whether a particular punishment has fallen out of favor today. Gorsuch’s framework, by contrast, asks whether a particular punishment was out of favor at the time of the founding. That’s a sea change in Eighth Amendment doctrine and one that could have profound implications for the death penalty.

It’s not yet clear how far the Court will take its recent opinion in Bucklew. Bucklew was a case about whether a state could use a particularly agonizing method to execute someone sentenced to death. That makes it distinct from cases like Gregg, which ask whether certain individuals can be given a death sentence in the first place.

It’s possible that the Supreme Court’s current majority will leave in place the Gregg framework, with its mandatory weighing of aggravating and mitigating factors, while also giving states more leeway to decide how to execute someone once a death sentence is handed down.

At the very least, though, Bucklew suggests that many members of the Supreme Court object to some of the foundational principles that guided Eighth Amendment cases for many decades. And that they are eager to make significant doctrinal changes to the constitutional law governing criminal punishments.

The future of the death penalty is highly uncertain. But Bucklew gives capital defense lawyers plenty of reasons to fear that future.