This year to date, nationwide executions are on a pace to reach their lowest level in 25 years. Capital punishments have been carried out only 15 times in 2016, and only twice since the start of May. If that rate persists through the remainder of this year, the nationwide total of 19 executions will be the lowest since 1991, when only 14 death sentences were carried out.
A few states, notably Texas, Georgia, and Missouri, regularly execute Death Row prisoners, but even in those states, capital punishment is less often invoked. For example, Texas has by far been the state with the most executions over the past five years, exacting the ultimate penalty 60 times. But even there, no prisoner has been executed since April, although several more may be by the end of this year. At the same time, however, Texas courts in recent months have halted four executions to consider varying legal issues.
Meanwhile, legal challenges and difficulty obtaining drugs needed for lethal injection executions have acted to slow or stop executions in other states, although some, such as Oklahoma and Ohio, have indicated they plan to resume executions after problems are resolved in obtaining supplies of lethal drugs.
Two current members of the U.S. Supreme Court, Stephen Breyer and Ruth Bader Ginsburg, have voiced support for taking up the issue of whether capital punishment amounts to “cruel and unusual punishment” forbidden by the Eighth Amendment to the Constitution.
While Justice Ginsburg has conceded the high court currently lacks the four votes required to take up such as case, she has also observed that executions are increasingly confined to a relative handful of states, or even to a few counties within those states. She has publicly raised the possibility that in the face of declining use, the death penalty might be “fading away,” even without a new Supreme Court ruling on its constitutionality.
Although 31 states have laws authorizing capital punishment, compared with 19 states that have abolished it, several states face voter or legislative initiatives that could change that.
In November, California voters will have a two-ballot measure on the subject: Proposition 62 calls for abolishing the state’s death penalty and replacing it with life without parole, plus restitution, and Proposition 66 calls for making the death penalty a more effective deterrent by speeding up appeals in capital punishment cases.
Recent polling shows a near-majority of likely voters saying they support the repeal proposal and running slightly ahead of a similar ballot measure that failed in 2012 with the support of 48% of voters, with 37% opposed and 15% undecided. Prop. 66 drew 35% support in a recent poll, with 23% opposed and a whopping 42% undecided.
Two states could reverse earlier restrictions placed on capital punishment: Nebraska voters will face a ballot measure seeking to repeal a law recently enacted to abolish capital punishment, and New Mexico’s governor says she’ll add reversing the state’s 2009 repeal of capital punishment to the agenda for a special legislative session called to deal with the state’s budget deficit.
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com, and PrisonLawBlog.com.