Historically, nations worldwide embraced capital punishment. That changed drastically starting in the 1960s and 1970s, including in the U.S. where legally authorized executions had dwindled to the point that none occurred between 1968 and 1976. Thereafter, though, the U.S. bucked the international trend and reversed course. This occurred in the wake of the U.S. Supreme Court’s 1976 ruling in Gregg v. Georgia that capital punishment is constitutional and able to be carried out in ways not excessively arbitrary or discriminatory.
The Court has since imposed myriad technical regulations and declared the death penalty unconstitutional for particular categories of convicted individuals (crimes not involving homicide, those who are intellectually disabled or are judged too mentally ill to be executed at the slated time, and those under age 18 at the time of the crime). However, capital punishment per se is taken to be constitutional – and indeed a practice taken for granted by the nation’s founders.
Today, more than 70 percent of the world’s nations have ended capital punishment either through laws or simply by ceasing use. The U.S. is the only fully developed nation in the West that continues to use the death penalty, and together with Japan, is among the most developed nations in the world to do so. Besides these two countries and China, which is generally regarded as the world’s execution leader, nations that retain capital punishment are concentrated in the Middle East, Eastern Africa, and Southeast Asia. Abolitionist nations generally view the death penalty as violative of universal fundamental human rights, but in the U.S. where there is less such concern, the death penalty is seen as congruent with evolving standards of decency as interpreted by the U.S. Supreme Court.
Nonetheless, the American death penalty is an institution in decline, and it has been since at least the start of this century. In this article and subsequent ones, I want to explore the decline of American capital punishment in the contemporary era. Here I take a descriptive look at volume and patterns of decline, as evidenced by statutory authorizations, executions, sentencing, and death row confinement trends.
Legal Authorization of Capital Punishment
Currently, 27 states, along with the federal government and military, authorize capital punishment, while 23 states do not. Eleven states have outlawed the death penalty since 2007. In 2021, Virginia, previously an execution leader, became (and remains) the lone former Confederate state to do so. The other abolitions occurred in Colorado (2020), New Hampshire (2019), Washington State (2018), Delaware (2016), Maryland (2013), Connecticut (2012), Illinois (2011), New Mexico (2009), as well as New Jersey and New York (2007). In some states, executive or judicial authorities have imposed various moratoria on executions pending consideration of issues deemed troublesome.
Some states have passed legislation narrowing or restricting death penalty use (e.g., types of cases eligible, provisions for review of decisions, etc.). Several jurisdictions (e.g., California, Kentucky, and Nebraska) have contemplated abolition in recent times, more often than one might think at the urging of politicians disenchanted over various facets of contemporary death penalty administration. Thus, although uneven across the nation and occasionally interrupted by symbolic political posturing, the clear trend is for jurisdictions to either scale back and reign in authorization of capital punishment, or to get rid of the death penalty altogether. It is worth reiterating that close to 30 percent of the states that allowed the death penalty at the start of this century no longer do.
For its part, the federal government under the Trump Administration sought to greatly expand authorization (and use) of capital punishment for federal crimes, including drug trafficking linked to homicide. However, the Biden Administration has pushed for restrained use and even abolition of the federal death penalty. The U.S. Military authorizes the death penalty but has conducted no executions since 1961 and houses hardly any death row prisoners.
Annual executions in the U.S. peaked at 199 during the Great Depression in 1935, about five years after the Justice Department started keeping count. After declining to none per year between 1968 and 1976, executions gradually resumed to a high of 98 in 1999, spurred by draconian “get tough” on crime measures generally and the growing popularity of lethal injection specifically. But they have declined ever since. The execution rate in 1935 based on a population of 127.3 million was .016 per 10,000, compared with .004 per 10,000 based on a population of around 279 million in 1999. Incidentally, the rate for 1790, the year of the first U.S. Census, was .043 based on a population of 3.2 million non-slaves and 14 known legal executions. It is widely accepted that execution rates were higher in the colonies than during later eras of American history.
The contemporary trend has been toward states cutting back on executions. Of states with the death penalty, 15 or more than 55 percent (including five in the South – Arkansas, Kentucky, Louisiana, North Carolina, and South Carolina) have not executed anyone in the last five years, and 13 states (along with the U.S. military) have not done so in the last decade.
The federal government had not conducted an execution since 2003 but then abruptly executed 13 prisoners from July 2020 to January 2021, including the first execution of a woman since 1953; this brought the federal total to 16 since 1977. At the start of 2022, 1,540 people had been executed in the modern era of capital punishment (since 1977), including: 11 in 2021 (3 of which were federal), 17 in 2020 (10 of which were federal), 22 in 2019, and 25 in 2018. In the states at least, the 2020 and 2021 execution paces were slowed by the COVID pandemic.
Over 80% of modern era executions have taken place in the southern region of the U.S., including (as of the start of 2022) 573 (37.2% of the total) in Texas. Five states (Texas, Oklahoma, Virginia, Florida, and Missouri) account for close to two-thirds of all executions since 1977. And it turns out that in these states, a handful of outlier death-penalty-minded counties have contributed a disproportionately large number of both executions and death sentences to the totals. Still, executions have declined significantly even in such states.
The recent trend has also been toward fewer death sentences. Prior to 2011, it was routine to see over 100 death sentences imposed per year; indeed before 2001, there were consistently 200 plus per year and over 300 per year from 1994-96. More than 80 death sentences per year were imposed in 2011-2013 and 73 in 2014. Then the numbers dropped to 49 in 2015, 31 in 2016, 39 in 2017, 43 in 2018, 34 in 2019, 18 in 2020, and 18 in 2021. (As with executions, capital trials in 2020 and 2021 were interrupted and delayed by the pandemic.)
Though declining almost everywhere, contemporary death sentencing remains concentrated principally in the American South (especially Alabama, Florida, Oklahoma, and Texas), with the next most sentences ensuing from the West (especially from select Southern California counties). Here again, we see a pattern of disproportionate concentration of death sentences within individual Southern and Western states and particular outlier counties therein.
Death Row Prisoners
The number of death row prisoners has also been declining. The number of people under a death sentence increased steadily from 134 in 1973 (the year after the U.S. Supreme Court invalidated all extant death penalty laws in the U.S. in Furman v. Georgia) to almost 3,600 in 2000 and then declined gradually thereafter. As of April 1, 2022, there were 2,414 persons on death row across the U.S. This is 60 fewer than at the start of 2022. Obviously, over time fewer death sentences are going to translate into fewer death row prisoners. Bear in mind, though, that existing death-sentenced prisoners (many of whom have served long stints on death row) are far more likely to exit death row confinement on account of capital conviction or sentence overturns arising out of legal errors than due to execution or another cause of death.
The largest numbers of death row inmates in April 2022 were California (690), Florida (323), and Texas (199), collectively comprising around half of all persons on death row. If Alabama, Pennsylvania, North Carolina, Ohio, and Arizona are added to the mix, this accounts for over 78 percent of people on death row in the U.S. Of course, outlier counties in these states have contributed disproportionately to the death row populations. There were 44 men on federal death row in April 2022 and four on military death row.
As with legal authorization, executions, and death sentences, the death row population shows clear evidence of decline, as well as unevenness and pocketed-style concentration, across the nation.
By: Kevin I. Minor, PhD, professor, EKU College of Justice, Safety and Military Science
*Note: Access to data of the kind used in this blog is readily available at https://deathpenaltyinfo.org/.
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