The Death Penalty On the Wane

Is it time to abolish capital punishment?

In the midst of the fall election campaign, Steven Hayes went on trial in New Haven, Conn., in one of the most horrific murder cases in memory. The killers invaded a home, beat a man with a baseball bat, sexually assaulted and strangled his wife, and tied up their two daughters before setting a fire that killed them.

It was the sort of crime that could only increase support for the death penalty. This effect had some relevance for the Connecticut governor's race, because it pitted a supporter of capital punishment, Republican Thomas Foley, against Democrat Dannel Malloy, an opponent.

When they debated, Foley promised to veto any bill to abolish the death penalty, while Malloy said, "We know that the application of the death penalty has not always been equal and even." A tough sell, right? But Malloy won.

That's just one of the parade of indications that capital punishment is on the wane. The popular impulse to put people to death is just not what it used to be.

Executions have fallen by half since 1999. The number of new death sentences is about one-third what it was at the 1996 peak. Even in Texas, long the leading practitioner, death sentences are off by 80 percent. Several states that retain capital punishment have not administered a single lethal injection in the past five years.

The exoneration of 138 death row inmates has weakened public support for the ultimate sanction. In a recent Gallup poll, 64 percent of Americans endorsed it, down from 80 percent in 1994, while opposition has nearly doubled.

A survey commissioned by the Death Penalty Information Center found that 61 percent prefer that murderers get some sort of life sentence instead. As a budget priority, the death penalty was ranked seventh out of seven issues.

Did someone mention budgets? They are no friend of an option that requires expensive trials, costly appeals, and pricey incarceration arrangements. Franklin Zimring, a law professor at the University of California at Berkeley, says capital punishment has become "an extreme luxury item."

Even the Neiman Marcus Christmas catalog, which this year offers a charm bracelet for $248,000, has nothing to compare. Maryland has spent $186 million on capital cases over the past 30 years—which comes to $37 million per execution.

The typical Texas death case carries a price tag of $2.3 million. A 2005 study pointed out that "New Jersey taxpayers over the last 23 years have paid more than a quarter billion dollars on a capital punishment system that has executed no one."

You might surmise that death sentences and executions have subsided because the homicide rate has dropped so much. But Zimring finds that the biggest decline has been among murders that aren't eligible for capital punishment. Capital murders have declined far less. There are thousands each year for prosecutors who want to pursue them.

Even among lawmakers, this remedy is losing ground. The New Jersey legislature repealed it in 2007 and New Mexico followed suit last year. New York's death penalty law was overturned in court, but legislators have refused to pass a new one.

Illinois Gov. George Ryan declared an execution moratorium in 2000, and his two successors have maintained it. But the moratorium has been, in a sense, the worst of both worlds. While taxpayers continue to incur the costs of seeking death sentences, none is ever carried out.

The cost will disappear if the General Assembly abolishes capital punishment, which opponents intend to propose as soon as it convenes in January. "I really think we're going to get it done," Jim Covington, director of legislative affairs for the Illinois State Bar Association, told me.

That shouldn't be impossible in a state where death row inmates are more likely to be exonerated than executed. Given Illinois' horrendous budget problems, the point of keeping the death penalty on the books is mysterious to see. In the last seven years, taxpayers have spent more than $100 million on capital cases even though the death chamber has been turned into a Starbucks.

If it is repealed, some people will cheer, some will be angry, and most will pay little attention. In the United States, the death penalty may never die, but its best days are past.

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