Where does capital punishment stand in America? On one hand, there have been a number of important advances on the anti-death penalty front. Executions dropped to a 25-year low this year, falling from 28 killed last year to 20 in 2016. And that's "down from a peak of ninety-eight, in 1999" reports The New Yorker:
Even more remarkable, just thirty people were sentenced to death this year, compared with three hundred and fifteen in 1996. Indeed, as the [recent Death Penalty Information Center] report further notes, “Fewer new death sentences were imposed in the past decade than in the decade preceding the Supreme Court’s invalidation of capital punishment in 1972.” The reduction in death sentences means that the decline in executions is likely to continue as well, because the pipeline of new cases is not as full.
For those looking to end the death penalty, there's been even more good news in 2016. A number of the country's pro-death penalty district attorneys were defeated, including Devon Anderson in Harris County, Texas, and Angela Corey in Duval County, Florida. Furthermore, the Supreme Court made a critical decision limiting the scope of a constitutional death penalty in Hurst v. Florida. Essentially, the court found that only a jury can do the fact-finding necessary to impose the death penalty, further constraining the ability of pro-death judges to wrestle power from the jury. That decision led the state Supreme Courts in Florida and Delaware to effectively end capital punishment in those states. (We covered both the Florida decision, which we called “one of the biggest death penalty decisions in years,” and the one in Delaware.) In fact, last week, Delaware actually commuted the sentence of every death penalty inmate to life without parole. (As we reported this month, Attorney General Pam Bondi is appealing the Florida Supreme Court’s ruling.)
Nationwide, public support for the death penalty also seems to be in decline. In fact, as we reported in September, the death penalty hasn't been this unpopular in 40 years:
A survey done by Pew Research Center reports that less than half (49 percent) of Americans support the death penalty now. Compare that to March of 2015, when 56 percent of Americans supported it, or the mid-’90s, when 80 percent of Americans supported capital punishment.
But things aren't all headed in the right direction.
For one, barring a major shift, Florida’s death penalty is likely to be eventually reimplemented in some form. The state may wait for Bondi’s appeal to be considered before they try to pass new legislation, but it’s also possible that the legislature will just pass a new death penalty statute that complies with the state court’s interpretation. (That doesn’t take away from the significance of the Florida Supreme Court’s decision, however—new legislation would still be significantly more limited in scope than its previous iteration.)
There are also major fears about a more active federal death penalty. Although the federal government hasn't executed anyone in 13 years, there are still 62 people currently on death row. Of those, 34 people were sentenced during Bush's tenure, and 14 were sentenced under Obama. Technically, a federal prosecutor has to have a death penalty recommendation approved by the attorney general.
Unsurprisingly, Trump and his Attorney General nominee, Jefferson Beauregard Sessions III, both support the death penalty. That makes the possibility of increased federal executions all the more likely in the coming years. This would be a massive step backward—the federal system has only executed three people since 1963. All three of those executions happened in less than a two-year period, from June 2001 to March 2003, while George W. Bush was president. It seems very possible that a new era of federal execution will soon be upon is.
What's more, the death penalty didn't fare so well on the ballot this election cycle. From The New Yorker:
In 2015, after a long political struggle, the Nebraska state legislature (which is unicameral) repealed the death penalty. But supporters of capital punishment put the issue on the ballot in the 2016 election, and more than sixty per cent of the voters supported its restoration. Voters in California were asked to address two contradictory initiatives concerning the death penalty. One would have ended executions in the state once and for all; the other sought to remove some of the legal barriers that have prevented executions from proceeding quickly, or really at all, in the state. The abolition initiative failed, with fifty-three per cent of the voters opposed, and the law for expediting the death penalty passed, with slightly more than fifty-one per cent of the vote.
And, though its improving, public opinion is also an obstacle for anti-death penalty advocates. "The Death Penalty Information Center report notes that public-opinion polls show some decline in support for the death penalty, but the opposition has never achieved close to a majority," reports The New Yorker. While the Pew survey indicates that less than half of America (49 percent) supports the death penalty, only 42 percent of America opposes it.
All of these issues are obstacles for the death penalty in the months and years to come, and are only compounded by the near certainty of a more conservative Supreme Court. Since hopes for a progressive justice to replace Scalia are basically entirely out the window, it is unlikely that the Supreme Court will overturn the death penalty in the near future.
Advocates against the death penalty continue to fight against capital punishment and work to reduce its salience in local and federal criminal sentencing. As Trump takes office, that work will become even more critical.