Capital punishment has had a turbulent courtroom history. Inmates on death row routinely spend years appealing their sentences. Numerous legal challenges have shown that the death penalty is disproportionately applied to nonwhite minorities. IQ and DNA tests are often catalysts for last-minute reprisals. Even at the highest level, the issue is rarely uncontroversial; the Supreme Court suspended capital punishment in 1972, only to reverse itself four years later. Given that the death penalty rests on perennially unstable legal terrain, people have long been tempted to look at the courts for signs of its future. They are probably looking in the wrong place. The end of capital punishment will not come from the judiciary, but will instead arise from subtler, more unassuming trends.
On the financial side, new evidence indicates that carry out a death sentence from conviction to execution is more expensive than life in prison. The exact savings are no small matter: a 2008 study by the California Commission for the Fair Administration of Justice found that by eliminating the death penalty, California could cut costs from $137 million to $11.5 million annually. Other states have calculated similar fiscal windfalls. Yet it was only after the 2008 recession – when state governments found their budgets squeezed – that legislators started to look seriously at these numbers. As luck would have it, the people most concerned about budgetary restraint are often found in places with high rates of execution. Republican-leaning states administer the death penalty more frequently than their liberal counterparts, and some conservatives have realized that this conflicts with their creed of fiscal responsibility. Conservatives Concerned About the Death Penalty, a new but flourishing organization, reflects the Right’s increasing skepticism over capital punishment. If the forces of cost cutting win out, the death penalty’s most ardent practitioners will ultimately leave it out in the cold.
Even if they do have the funds and the political will to carry out a death sentence, states are increasingly unable to find the means to do so.
Cash is not the only limiting factor for capital punishment these days. Even if they do have the funds and the political will to carry out a death sentence, states are increasingly unable to find the means to do so. In 2011 the only American firm that manufactured sodium thiopental, an essential drug for lethal injections, went out of business. States then turned to pentobarbital as a substitute, but its Danish manufacturer soon halted execution-related sales. That same year, the European Union banned lethal-injection drugs from being exported to the United States. In three rapid blows, state governments were confronted with an imminent death penalty bottleneck. Now in 2014, domestic stockpiles of sodium thiopental and pentobarbital are on their last legs. Oklahoma recently stayed the execution of two inmates because it didn’t have the necessary drugs. Texas, America’s all-time leader in executions, is experiencing a similar problem. Tennessee has pushed in the other direction, submitting simultaneous petitions to execute 10 people on death row – more than over the last 60 years – so that it may carry out their sentences before all the remaining pentobarbital is gone or expires. While some local legislators have proposed using firing squads to relieve the shortage, such archaic, cruel, and unusual methods are doubtlessly unconstitutional. Without some sort of divine intervention, it seems that states will soon be unable to send convicted killers to meet their maker.
While there are clear pragmatic reasons for the death penalty’s decline, others are much more opaque. Most inexplicable of all is the decreasing support for capital punishment among the American public. The Pew Research recently revealed that popular approval of the death penalty has slid over the past two decades. This trend has coincided with an aggregate drop in crime, so it is possible that the public is more willing to scale back “tough justice” policies of the past. Yet no matter how precipitous the decline, given that a majority of Americans still support capital punishment, one would not expect this trend to be reflected in the actual number of sentences and executions. Nonetheless, both have dropped markedly since 2000.
It might be the case that courts are taking their cues from the growing popular shift against capital punishment. Perhaps they have come to their own conclusions about how the death penalty is an ineffective way to deter crime; a 2005 study published in the Stanford Law Review found that “the existing evidence for deterrence” by capital punishment “is surprisingly fragile.” The recent slew of high-profile exonerations – driven by DNA advances – may have also prompted lower courts to second-guess themselves. But regardless of the cause, it remains clear that the judiciary will not be the death-knell of this judicial issue. The Supreme Court is divided along the old debate of capital punishment, meaning that the only real change will come from exogenous factors. As executions become more politically, fiscally, and even medically harder to maintain, this legally contentious issue will be settled by decidedly non-legal trends.