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Sudden DeathAmerican support for the death penalty is diminishing—except on the Supreme Court.

By Dahlia Lithwick
Posted Saturday, Feb. 10, 2007, at 6:42 AM ET

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Antonin Scalia. Click image to expand.

In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to harden in the one institution that was, until recently, showing real doubt: the Supreme Court.

The trend is clear. According to the Death Penalty Information Center, which compiles statistics on capital punishment, two states have imposed formal moratoria on the death penalty; executions in New York are on hold after the state's death-penalty law was declared unconstitutional in 2004; 11 other states have effectively barred the practice because of concerns over lethal injection (including, most recently Florida and Tennessee); and 11 more are considering either moratoria or repeals.

The raw numbers of executions and death sentences in the United States have plummeted: Information Center statistics show that in 1999 states executed 98 people, and in 2006 that number dropped to a 10-year low of 53. American judges and juries steadily condemned about 300 prisoners a year to death through the1990s; now that number has declined by over half, hitting a low of 114 this past year. Public support also seems to be faltering. A 2006 Gallup poll showed that two-thirds of Americans still endorse capital punishment for murderers. But when given the choice between the death penalty and a life sentence without parole, for the first time in 20 years, more people preferred the life prison term (48 percent) to capital punishment (47 percent).

Our newfound national queasiness over the death penalty extends from the methods of execution to growing fears that we're executing the wrong guys. The most pressing problem for many states is lethal injection, the preferred method in 39 of the 40 states that permit capital punishment. Last December, then-Gov. Jeb Bush of Florida halted executions statewide following one in which the prisoner took 34 minutes to die and suffered chemical burns in the process. Recent scholarship, including a British medical journal report, indicates that the lethal-injection cocktail that states use may simply mask agonizing pain prior to death. And state courts are also increasingly bothered about the proper role of physicians—often mandated by law to supervise the lethal-injection process—over objections by medical associations and ethics boards.

There are other reasons for our growing doubt about the death penalty. In a 2005 speech, Justice John Paul Stevens pointed to several, including DNA evidence showing "that a substantial number of death sentences have been imposed erroneously," the pressure that elected judges face to impose capital punishment, and the problem of barring jurors who oppose capital punishment from sitting on capital cases, creating juries that may favor execution. For these and other reasons, Americans have begun to worry that the death penalty in this country is not reserved for the so-called worst of the worst, but rather for the poorest of the poor, and those whose trial attorneys later prove to have been asleepest at the switch.

The Innocence Project now claims 194 post-conviction DNA exonerations. A study of wrongful executions, by Hugo Bedau and Michael Radelet, contends that between 1900 and 1991, 416 clearly innocent people were sentenced to death. And studies increasingly show that the death penalty is shockingly and disproportionately meted out based on race in this country. So, pick your reason. One thing is clear, you needn't oppose the death penalty in all circumstances to fear that we're making terrible mistakes.

In recent years the national doubts over the death penalty were mirrored at the Supreme Court. In a 2006 survey of trends in capital cases in the Georgetown Law Journal, Duke University professor Erwin Chemerinsky observed that in the final years of the Rehnquist Court, the justices showed a marked, and surprising, tendency to overturn death sentences. In addition to reversing individual sentences, the justice banned executions of the mentally retarded and those who were juveniles at the time of their crimes, and made it easier for death-row defendants to argue ineffectiveness of counsel. Off the bench, Stevens, Justice Ruth Bader Ginsburg, and then-Justice Sandra Day O'Connor spoke publicly and passionately about flaws in the capital system. Chemerinsky speculated that "a majority of the court was (and continues to be) deeply concerned about how the death penalty is administered in the United States." "The reality of innocent people facing execution has had a profound effect on the Justices," he concluded.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Justice Antonin Scalia by Alex Wong/Getty Images.
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