The death spiral of the death penalty

Come on, folks, the news isn’t all bad. Only 39 people were put to death by lethal injection this year — a 60 percent drop since 1999. Heck, even Texas snuffed only 16 people this year — a 60 percent drop since its record tally in 2000. Gallup says that 60 percent of Americans still support the death penalty — but that’s the lowest share since 1972, and six states (including New Jersey) have abolished it in the last six years.

As the year-end stats suggest, capital punishment is slowly but inexorably on the wane. If current trends continue, the United States may well lose its eminent status as one of the top five execution nations, an award it currently shares with mixed company: Iran, Iraq, China, and Saudi Arabia. (Maybe we’d be better off leading the world in things like health care, life expectancy, and student proficiency in math and science – instead of being way back in the pack.)

Anyway, the director of the Death Penalty Information Center isn’t wrong when he says that “a societal shift is underway” in this country, with respect to the practice of state-sanctioned killing. Prosecutors are seeking the death penalty less than they used to, and juries are giving life sentences without parole more than they used to – mindful, more than ever, that scores of inmates sentenced to death have later been exonerated thanks to the advent of DNA testing. (The latest exoneration count: 143.)

Twenty years ago, 315 death sentences were meted out nationwide; in 2012, only 78. The DNA issue aside, liberals have rightly pointed out that black defendants are disproportionately sentenced to death more than white defendants; and a growing number of conservatives have bailed on the death penalty – rightly pointing out that the taxpayer tab for capital punishment is indefensibly high.

Plus, there’s the ongoing dark comedy about sodium thiopental, a barbituate anesthetic that has long been the first of three drugs administered to doomed inmates. (Phase two of the perish process is a muscle relaxant; phase three is a drug that brings cardiac arrest.) Turns out, sodium thiopental has become kind of scarce. American companies have ceased making the drug; European companies, pressured by their host nations, now insist that sodium thiopental not be used to kill people.

The shortage has prompted the 32 death penalty states to scramble for untried, untested alternatives. Some states are using new drugs obtained from sources that aren’t supervised by the Food and Drug Administration. Meanwhile, Florida (we can always depend on Florida) has come up with a replacement drug for its three-phase process, but apparently on first try it didn’t work so efficiently. When William Happ, a 27-year death row denizen, was injected in October, “it appeared Happ remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula.”

So now the inmates’ lawyers have a brand new legal strategy. They can file suit claiming that the new drugs are inhumane, thus violating the U.S. Supreme Court’s requirement that executions be humane. That translates into even more administrative costs, and more time for the inmates on death row. In other words, this is potentially one more criminal justice expense to be borne by the taxpayers.

And those expenses — far higher than in non-death penalty cases — are beyond dispute. The experience of our most populous state tells the tale. In 2008, a California crime commission determined that the state was spending $137 million a year on the death penalty, and that the same defendants, if sentenced to life without parole, would cost only $11.5 million a year. Extrapolate that cost disparity to the 32 death states, and you get the idea.

It’s no wonder that a group called Conservatives Against the Death Penalty says: “Capital punishment is a bloated government program that has clogged our courts, delayed justice for victims’ families, and devoured millions of crime-fighting dollars.” And why is state-sanctioned death so costly? Because, the group rightly says, “a life is on the line. Capital cases involve more lawyers, more witnesses, more experts, a longer jury selection process, more pre-trial motions, an entirely separate trial to determine the sentence, and countless other expenses — racking up exorbitant costs even before a single appeal is filed.”

Evan Mandery, an attorney and author of Wild Justice, a new book on the death penalty, confirms the conservatives’ complaint: “Only about one in 10 people who are sentenced to die are ever executed. This means that states are paying the up-front costs associated with capital punishment — longer, more expensive trials, more expensive confinement, more appeals, and only occasionally receiving the cost savings of not having to imprison a criminal for his natural life.”

If only Pennsylvania would follow the example of its northeastern neighbors — New Jersey, New York, Connecticut, Maryland — all of whom have shelved the death penalty. If only Pennsylvania would heed Mandery’s words: “If the past 40 years have proved nothing else, it is that creating a rational, predictable system for separating those who deserve to live from those who deserve to due may be beyond human capacity.”

Pennsylvania hasn’t killed an inmate since 1999, yet it currently houses 189 people on death row. That alone is the quintessence of irrational.

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The last paragraph in the post was tweaked to include the correct date of the most recent Pennsylvania execution. I had written “1962” after misreading a line item in the state death stats. My bad!

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