Enthusiasm for Death Penalty Waning, Report Says

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By Lance J. Rogers

Executions, death sentences and the public appetite for capital punishment have all fallen to record lows, according to a year-end report released Dec. 21 by the Washington-based Death Penalty Information Center.

“Fewer counties are seeking death, fewer prosecutors are pursuing capital trials and fewer juries are returning death sentences,” Robert Dunham, DPIC’s executive director and author of the report told Bloomberg BNA.

Debate Over Public Support

But this doesn’t signal that the death penalty is on its last legs, says Kent Scheidegger, legal director and general counsel for the California-based Criminal Justice Legal Foundation.

On the contrary, there’s solid evidence that public support for the death penalty remains strong, even in solid “blue” strongholds like California and Connecticut, Scheidegger told Bloomberg BNA.

Scheidegger said it was significant that voters in Nebraska, Oklahoma and California all approved pro-capital punishment initiatives in the fall of 2016 and that a competing measure to abolish the death penalty in California was soundly defeated.

Four years ago, Californians rejected by roughly half a million votes a similar proposal to jettison the state’s death penalty, Scheidegger said. This time around, he added, the margin of defeat was a full million.

“An increasing margin of defeat in an election where everything was trending in their favor is highly significant,” he said.

California voters this fall favored Hillary Clinton over President-elect Donald Trump by nearly a two-to-one margin.

“I expect to see the resumption of executions in California in the coming year as a result of Proposition 66, and that is a big deal,” Scheidegger said. Scheidegger helped write the initiative, which keeps capital punishment on the table and streamlines the appeals process for death row inmates.

The DPIC collects data about capital punishment and criticizes the way death sentences are handed out and the way executions are performed.

‘Climate Change.’

Only 30 defendants wound up on death row in 2016, according to the report. That’s a dramatic drop from the 49 death sentences handed down in 2015, Dunham said.

Also, the 20 executions that were carried out in Alabama, Georgia, Missouri, Florida and Texas in 2016 represents the lowest number in a single year since 1991, he added.

The numbers show the increasing geographic isolation of the death penalty and its “disproportionate overuse by a handful of jurisdictions,” Dunham said.

“Whether it’s concerns about innocence, costs, and discrimination, availability of life without parole as a safe alternative, or the questionable way in which states are attempting to carry out executions, the public grows increasingly uncomfortable with the death penalty each year,” Dunham said.

The voter initiatives in California, Nebraska and Oklahoma don’t signal that the pendulum is swinging back, Dunham said.

“America is in the midst of a major climate change concerning capital punishment. While there may be fits and starts and occasional steps backward, the long-term trend remains clear,” Dunham said.

The DPIC also claims that public support for the death penalty is at an historic low, citing a September study by the Pew Research Center that suggests that only 49 percent of Americans support capital punishment.

But if the latest presidential election taught us anything, it is that polls can be misleading. An October Gallop poll indicates that 60 percent of Americans favor capital punishment.

In the past 10 years, seven states have abolished capital punishment. However, capital punishment remains legal in 31 states.

Voters Have Their Say

Scheidegger said that the DPIC report unduly minimizes the significance of the voter initiatives this past year and papers over the role that the abolitionist movement has played in making unavailable the drugs used in lethal injection cocktails .

In Nebraska, voters repealed LB 268 and reinstated the death penalty as an option for defendants convicted of first degree murder, by more than 60 percent of the vote. Those numbers closely tracked President-elect Donald Trump’s margin of victory in the state.

That result shows that death penalty opponents have only succeeded by thwarting the will of the electorate, Scheidegger.

Scheidegger said he can’t remember a single time that the death-penalty abolitionists have won a statewide referendum since the U.S. Supreme Court court ruled in Gregg v. Georgia, 428 U.S. 153 (1976), that capital punishment is constitutional.

“In Connecticut, opinion polls were strongly against repeal when the Legislature repealed anyway, but Connecticut does not have the referendum,” he said.

Scheidegger said that another important indicator for the future of capital punishment is the nomination of Sen. Jeff Sessions (R-Ala.) to the post of attorney general.

“This will be the first time we have had a USAG who actively favors the death penalty in a very long time,” Scheidegger said.

“With active federal support, our chances of breaking the drug supply logjam greatly increase,” he added.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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