Death of death penalty- Time Magazine

BY DAVID VON DREHL

TOTAL EXECUTIONS IN THE U.S. SINCE 1700

15,746

NUMBER OF EXECUTIONS BY METHOD

65	130	9183	593	4439	1234	102
BURNING	FIRING SQUAD	HANGING	GAS	ELECTROCUTION	INJECTION	OTHER

The case of Dzhokhar Tsarnaev absorbed Americans as no death-penalty drama has in years. The saga of his crime and punishment began with the shocking bloodbath at the 2013 Boston Marathon, continued through the televised manhunt that paralyzed a major city and culminated in the death sentence handed down by a federal jury on May 15 after a two-phase trial.

Justice was done, in the opinion of 70% of those surveyed for a Washington Post–ABC News poll in April. Support for capital punishment has sagged in recent years, but it remains strong in a situation like this, where the offense is so outrageous, the process so open, the defense so robust and guilt beyond dispute.

Even so, Tsarnaev is in no danger of imminent death. He is one of more than 60 federal prisoners under sentence of execution in a country where only three federal death sentences have been carried out in the past half-century. A dozen years have passed since the last one.

The situation is similar in state courts and prisons. Despite extraordinary efforts by the courts and enormous expense to taxpayers, the modern death penalty remains slow, costly and uncertain. For the overwhelming majority of condemned prisoners, the final step—that last short march with the strap-down team—will never be taken. The relative few who are killed continue to be selected by a mostly random cull. Tsarnaev aside, the tide is turning on capital punishment in the U.S., as previously supportive judges, lawmakers and politicians come out against it.

Change is not coming quickly or easily. Americans have stuck with grim determination to the idea of the ultimate penalty even as other Western democracies have turned against it. On this issue, our peer group is not Britain and France; it’s Iran and China. Most U.S. states authorize the death penalty, although few of them actually use it. We value tolerance and ­diversity—but certain outrages we will not put up with. Maybe it’s the teenage terrorist who plants a bomb near an 8-year-old boy. Maybe it’s a failed neuroscientist who turns a Colorado movie theater into an abattoir. We like to think we know them when we see them. Half a century of inconclusive legal wrangling over the process for choosing the worst of the worst says otherwise.

On May 27, the conservative Nebraska state legislature abolished the death penalty in that state despite a veto attempt by Governor Pete Ricketts. A parallel bill passed the Delaware state senate in March and picked up the endorsement of Governor Jack Markell, formerly a supporter of the ultimate sanction. Only a single vote in a House committee kept the bill bottled up, and supporters vowed to keep pressing the issue.

In February, Markell’s neighboring governor, Tom Wolf of Pennsylvania, declared an open-ended moratorium on executions. That officially idles the fifth largest death row in America. The largest, in California, is also at a standstill while a federal appeals court weighs the question of whether long delays and infrequent executions render the penalty unconstitutional.

Even in Texas, which leads the nation in executions since 1976 (when the U.S. Supreme Court approved the practice after a brief moratorium), the wheels are coming off the bandwagon. From a peak of 40 executions in 2000, the Lone Star State put 10 prisoners to death last year and seven so far in 2015. According to the state’s Department of Corrections, the number of new death sentences imposed by Texas courts this year is precisely zero. There, as elsewhere, prosecutors, judges and jurors are concluding that the modern death penalty is a failed experiment.

The shift is more pragmatic than moral, as Americans realize that our balky system of state-sanctioned killing simply isn’t fixable. As a leader of the Georgia Republican Party, attorney David J. Burge, recently put it, “Capital punishment runs counter to core conservative principles of life, fiscal responsibility and limited government. The reality is that capital punishment is nothing more than an expensive, wasteful and risky government program.”

This unmistakable trend dates back to the turn of the century. The number of inmates put to death in 2014 was the fewest in 20 years, while the number of new death sentences imposed by U.S. courts—72—was the fewest in modern American history, according to data collected by the Death Penalty Information Center. Only one state, Missouri, has accelerated its rate of executions during that period, but even in the Show Me State, the number of new sentences has plunged.

Thirty-two states allow capital punishment for the most heinous crimes. And yet in most of the country, the penalty is now hollow. Since the start of 2014, all but two of the nation’s 49 executions have been carried out by just five states: Texas, Missouri, Florida, Oklahoma and Georgia.

For the first time in the nearly 30 years that I have been studying and writing about the death penalty, the end of this troubled system is creeping into view.

And I’ll give you five reasons why.

TOTAL EXECUTIONS IN THE U.S. SINCE 1700

15,746

NUMBER OF EXECUTIONS BY METHOD

65	130	9183	593	4439	1234	102
BURNING	FIRING SQUAD	HANGING	GAS	ELECTROCUTION	INJECTION	OTHER

Lethal injection was intended to be a superior alternative to electrocution, gassing or hanging, all of which are known to go wrong in gruesome ways. But when pharmaceutical companies began refusing to provide their drugs for deadly use and stories of botched injections became commonplace, the same legal qualms that had turned courts against the earlier methods were raised about lethal injections.

Alex Kozinski, the conservative chief judge of the federal Ninth Circuit Court of Appeals, recently wrote that Americans must either give up on capital punishment or embrace its difficult, brutal nature. Rather than pretend that execution is a sort of medical procedure involving heart monitors and IV lines—a charade that actual medical professionals refuse to be part of—we should use firing squads or the guillotine. (Utah, which abandoned execution by firing squad in 2004, restored the option in April. No other U.S. jurisdiction has used rifles for an execution in more than 50 years.)

“Of course, it does raise the question of whether we are really comfortable with having a death penalty that literally sheds blood,” Kozinski allowed in an interview with the Los Angeles Times. “The thing about the drugs is that it’s a mask.”

The legal machinery of capital punishment—the endless process of appeals and reviews—is equally miserable to ponder.

Consider this: Last year, Florida executed Askari Muhammad, a man known as Thomas Knight when he was sent to death row in 1975 after kidnapping, robbing and murdering a couple from Miami Beach. Five years later he stabbed a prison guard to death with a sharpened spoon.

To detail all the reasons it took nearly 39 years to execute Knight/Muhammad would require a chapter of a book, not a paragraph of an essay. Suffice it to say, a legal system that requires half a lifetime to conclude the case of a proven lethal recidivist is not a well-functioning operation.

Nor is that case unusual. In Florida alone, three other men who arrived on death row in 1975 are still there, marking their 40-year anniversaries—part of a total death-row population in that state of 394. (In those 40 years, Florida has carried out 90 executions. At that rate, the Sunshine State would need about 175 years to clear out its death row.)

Of the 14 inmates executed so far this year in the U.S., five spent from 20 to 30 years on death row, five more languished from 15 to 19 years, and not one spent less than a decade awaiting execution. On May 24, Nebraska death-row inmate Michael ­Ryan died of cancer, nearly 30 years after he was sentenced to be executed by the state.

State and federal courts are so backlogged with capital cases that they can never catch up. Roughly half of California’s 750 condemned inmates have not even begun their appeals because they arewaiting for the state’s underfunded defense bureaucracy to give them a lawyer.

Moving faster creates its own problems. The risks involved in trying to speed executions are apparent in the growing list of innocent and likely innocent death-row prisoners set free—more than 150 since 1975. In Ohio, Wiley Bridgeman walked free 39 years after he was sentenced to death when the key witness at his trial—a 12-year-old boy at the time—admitted that he invented his story to try to help the police. In general, scientific advances have undermined confidence in the reliability of eyewitness testimony and exposed flaws in the use of hair and fiber evidence. DNA analysis, meanwhile, has offered concrete proof that the criminal justice system can go disastrously wrong, even in major felony cases. In North Carolina last year, two men sentenced to death as teenagers were releasedafter DNA evidence proved they weren’t guilty. The exoneration came after 30 years in prison.

Incompetent investigators, using discredited science, sent two men to death row in Texas for alleged arson murders. One of them, Ernest Willis, was freed in 2004 after his attorneys commissioned a review by an expert in fire science, who concluded that neither blaze was caused by the suspects.

But the findings came too late for the other man, Cameron Todd Willingham, who was executed that same year. In this instance, and perhaps in others, Texas may have killed an innocent man.

Reason 2: The crime rate has plunged. 
Public support for capital punishment ebbs and flows. During the low-crime years of the late 1950s and early ’60s, surveys by Gallup charted a fairly steady drop in support—down to a nadir of 42%. That trend contributed to the brief abolition of the death penalty by order of the Supreme Court in 1972. But by then, a new crime wave was building, and states rushed to restore capital punishment by passing laws meant to eliminate arbitrary results and racial discrimination. After the Supreme Court approved the modern penalty in 1976, support for the death penalty skyrocketed in lockstep with the murder rate. By the time New York City recorded more than 2,200 murders in the single year of 1990, 4 of 5 Americans were pro-death-penalty, according to Gallup.

Now crime rates have fallen back to levels unseen since the placid early 1960s. In New York City alone, there areroughly 1,900 fewer murders per year now compared with the goriest days of the early 1990s. Although pockets of violence remain in cities, the vast majority of Americans are much safer today than a generation ago.

Gallup has measured the result: support for capital punishment has hovered in recent years at just above 60%, lower than at any time since 1972. It’s a big number, but not as big as before. Shifting public opinion makes it easier for judges and legislators to train a skeptical eye on a dysfunctional system of punishment. Former Virginia attorney general Mark Earley supported the death penalty while presiding over the execution of 36 inmates from 1989 to 2001. In March he published an essay calling for an end to capital punishment. He had “come to the conclusion that the death penalty is based on a false utopian premise. That false premise is that we have had, do have, and will have 100% accuracy in death penalty convictions and executions.”

The reduced political pressure has made it possible for six states to abolish the death penalty since 2007; Nebraska makes it seven. In a number of other state capitals, the energy is also moving in that direction. New Hampshire’s legislature came within a single vote of abolition in 2014, while governors of Washington, Oregon and Colorado have indicated that they will not allow executions.