Is the death penalty dying? Sentences, executions remain low

 The number of executions in 2023 rose to 24 from 18 a year earlier. Texas (8) and Florida (6) made up 60% of the total.

The number of states imposing or performing executions in 2023 was at a 20-year low, according to the Death Penalty Information Center, a group that complies such statistics.

Polling indicates that public skepticism of the fairness and propriety of the death penalty continues to increase. And increasingly, bipartisan coalitions in legislatures are pushing to abolish it in states that haven’t already, the year-end report said.

The U.S. Supreme Court is one institution, however, that seems to be out of step with the growing march against state-sponsored killing.

Ohio continued to delay executions this year — as Gov. Mike DeWine has since taking office in early 2019.

He first cited court findings that the state’s protocol might amount to cruel and unusual punishment. Then, after an appellate court struck down that argument, DeWine said the state couldn’t get the drugs needed to supply the death chamber near Lucasville. That said, 129 remain on death row in Ohio.

Even some who believe that there are crimes so heinous they warrant death have acknowledged that doing so carries serious practical difficulties.

It’s not evenly applied, with minorities much more likely to receive death sentences than white people. It’s been improperly applied, with more than 190 exonerations since 1973. This year saw two more — Jesse Johnson in Oregon, and Glynn Simmons in  Oklahoma.

And with drugmakers adamantly opposed to the use of their medicines to kill people, states have struggled to find execution methods that work and that won’t violate the Constitution’s stricture against cruel and unusual punishment — even though under the current Supreme Court, those strictures are pretty lax.

All this has left prosecutors less enthusiastic about bringing death penalty cases and governors less adamant about carrying them out.

Just five states — Texas, Florida, Missouri, Oklahoma, and Alabama — carried out executions in 2023. And seven — Alabama, Arizona, California, Florida, Louisiana, North Carolina, and Texas — sentenced people to die. That makes the fewest number of states engaging in such activity in two decades, according to the report.

Despite that, the number of executions in 2023 rose to 24 from 18 a year earlier. Texas (8) and Florida (6) made up 60% of the total.

Meanwhile, lawmakers continued to work to abolish the death penalty in the 27 states where it’s still legal. In Ohio, bipartisan coalitions in both chambers continued efforts to outlaw the punishment.

As they did, public opinion across the country continued to swing against the death penalty.

A Gallup poll conducted last month found that for the first time, more Americans (50%) believe the death penalty is applied unfairly than the portion (47%) who believe that it is applied fairly. Gallup also found this year that support for the death penalty (53%) remains near a 50-year low.

While public opinion and state officials are moving away from the death penalty, the U.S. Supreme Court seems to be moving in the opposite direction.

In 2019, a panel the 6th U.S. Court of Appeals in Cincinnati disagreed that it was cruel and unusual punishment even if a convict being killed in the Ohio execution chamber felt like he was suffocating.

In justifying themselves, they quoted from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe in which he argued that hanging also did not amount to cruel and unusual punishment. Gorsuch wrote that at the time the Eighth Amendment was adopted, people didn’t see hanging as intentionally cruel, unlike practices such as disemboweling or burning the condemned while they were still conscious.

In other words, he said that since people didn’t see hanging as unduly cruel 228 years ago, the Constitution shouldn’t be invoked to call it so now.

The Death Penalty Information Center report said that the current conservative court is also playing a much less active role in the regulating death penalty now than it did when the ultimate punishment was revived a half-century ago. Then, the court stayed executions in extraordinary cases and resisted state efforts to expand the death penalty, the report said.

Now, not so much.

“The Supreme Court granted only one stay of execution (in 2023), reflecting the view of some members of the Court that prisoners bring ‘last-minute claims that will delay the execution, no matter how groundless,’ the report said, adding that the court took up only four death penalty appeals in 2023 while turning away the “overwhelming majority.”

It added, “Some state officials and legislatures may once again feel unrestrained by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with new legislation making a non-homicide crime a death-eligible offense, while states like Alabama announced plans to use nitrogen gas in an untested, risky method of execution.”

This story was published earlier by the Ohio Capital Journal, an affiliate of the nonprofit States Newsroom network, which includes the Florida Phoenix.

This article originally appeared in FloridaPhoenix.com  on December 18th, 2023.  

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