Dudley Sharp, updated 12/2017
Countless media reports have stated that the death penalty is dying because of less public support, innocents at risk, the high costs, etc., etc., with the "facts" provided by the deceptive anti death penalty folks, then, most often, parroted by the media.
Let's take a look.
Death penalties/executions plummeted from 1991-2014 because 1) capital murders plummeted; 2) court decisions/activism, further limited or delayed death penalty application or executions, inclusive of appeal time tripling, from the 1980s to 2017; 3) Lethal injection challenges and drug restrictions limited executions; 4) DA's may have been more reluctant to seek death because of judicial obstructionism.
WHY FEWER DEATH SENTENCES
What's the most obvious reason for the drop in death sentences? Answer: Fewer capital murders.
The US has had double digit executions, annually, from 1984 - 2014. Murders are, now, at a 46 year low (1). Murder rates are, now, at a 57 year low (1).
It follows that death sentences are at a 42 year low.
In the US, from 1991-2014, there was 43% drop in murders (a 54% drop in murder rates) and a 53% drop in robberies (a 63% drop in rate) (1).
Murder/robbery is, by far, the most common death penalty crime.
The leading execution state (by number, not rate), Texas, had a 55% drop in murders (71% drop in rate), 37% drop in robberies (60% drop in rate), during the same period (1).
As robbery/murders are the most common death penalty eligible crimes, those may have dropped from 70-80%.
Based upon new case law and state death penalty repeals, such may account for an additional 10% reduction in death sentences (2).
Those two appear to account for the vast majority of death penalty reduction.
Other, minor additional factors are LWOP, up front costs, as others, some contributing to prosecutorial frustration/discretion, as a rule, caused or affected by . . . .
Judges, some with responsibility, others with complete abandon. are the case managers, in control of both time and costs (3).
Because of judicial roadblocks and delays (3), some prosecutors may just get fed up, choosing to avoid the death penalty, seek a LWOP trial instead, or, better, a plea to LWOP, avoiding the huge costs and countless delays imposed by many judges in death penalty cases, at pretrial, in trial and within appeals.
In states like California, Kansas and Pennsylvania, judges are, very openly, killing the death penalty, as they did in New Jersey and Connecticut.
For example, in the modern era, post Gregg v Georgia (1976):
Virginia executed her first 112 murderers within 7 years of full appeals, on average (4), has executed 73% of those sent to death row and has an 11% overturning rate in appeals (5). Virginia's latest execution, 10/1/2015, occurred after 5 years of full appeals (4).
Contrast that to:
Pennsylvania has executed only 3 of the 417 sentenced to death, or 0.7%, and has a 45% overturning rate in appeals (5), likely to become 90%, if the judges will allow appeals to end.
Pa judges will only allow executions when the murderer "volunteers" and waives appeals, whereas Virginia judges are responsible and respect the law.
Pa judges are, quite obviously, obstructionists to the law, a common and obvious problem in many jurisdictions, . . .
". . . in California, appeals attorneys are not appointed (by judges) for three to five years. (Those attorneys, then, allowed by judges) to take four years to learn the case and file their appeal. Attorneys for habeas appeal (through the federal courts) are not appointed (by the judges), on average, until eight to 10 years after the death sentence." (6).
A 7-10 year wait for the first appellate brief. Judges have, intentionally, destroyed the California system, as could not be more obvious.
For some, the judicial problems may be too much.
The entire media, completely, missed the judicial component, which is huge. How? As a rule, the media only cares what the anti death penalty folks have to say and that's not in their agenda.
WHY FEWER EXECUTIONS?
Since 2006, executions have been affected by litigation related to the lethal injection method, as well as drug shortages, within that method, resulting in a "slowdown" of executions averaging 43 per year (2007-2013) (7a&b).
It is very rare to have executions over 60 per year, which has only occurred 7 times (1997-2003), or 18% of execution years (7a).
Excluding those exceptions, the average is 27 executions per year (1977-1996, 2004-2013), 82% of execution years, and, if starting with double digit executions in 1984, the average is 36 executions per year (7a).
The "slowdown" period has averaged 43 executions/year and could get down to those 27-36 for those 9-20 year averages, if the actual execution problems are not corrected.
A note on "Bloodthirsty" Texas
"Texas sentences murderers to death at a rate below the national mean." (8a).
Since 1973, Texas has executed 0.73% of her murderers after 11 years of appeals, on average (8b).
Texas doesn't execute a lot of murderers per murder, it's just that most everywhere else, judges won't allow cases to proceed in a responsible time frame (3).
128% Increase In Appeals Time
Executions are, undoubtedly, much fewer than they would otherwise have been, because the time between sentencing and executions has risen by 2,3 times, from 6.6 years, the average time from 1984-1988, when double digit executions began, to 15 years, the average time from 2009-2013 (9).
This is the fault of the judges, again, (see JUDICIAL ROADBLOCKS) and is an intended killer of the death penalty, as virtually every hearing on the death penalty attests and it might be the greatest reducer of executions, but was, completely, . . . missed by the media.
In 1996, the US Congress passed the Anti Terrorism and Effective Death Penalty Act (AEDPA), part of which was supposed to quicken the federal section of death penalty appeals.
Every year since then, the average time of appeals, until execution, has been greater than in 1996 (10.4 years), with the longest being 16.5 years in 2011 (9).
Apparently, judges didn't like the AEDPA . The judicial move against the death penalty became even more obvious.
The tremendous increase in appeals times and the lethal injection issues are, almost exclusively, responsible for the reduction in executions.
REVEALING DECEPTIONS: Botched Executions, Innocents at Risk, Racism, High Cost & Lower Support
These are some of the more common, alleged and false reasons for the drop in death sentences, provided by anti death penalty sources.
Truly "botched" executions, via lethal injection, occur about 1% of the time, not 7% (10).
For example, "Charles Warner, who was executed . . . for the killing of an 11-month-old girl in 1997, said during his last words: "It feels like acid." The comment came before any of the lethal drugs were administered and while he was only receiving a saline drip through an intravenous line." (11)
Most likely, Warner's exclamation was just invented to produce another false reason against the death penalty, as, allegedly, occurred in the Ohio execution of Dennis McGuire, below.
The highly publicized "botched" executions in Arizona and Ohio were not such thing (12) , as found by one (o-n-e) reporter, and those executions reflected, exactly, the type of slower time to death, the known, predicted outcome of using those drugs, which could not, pharmacologically, allow for consciousness or pain but, just the opposite (12).
Oklahoma was just one disaster after another, with their last two executions, Lockett (2014, bad procedure) and Warner (2015, wrong drug). That was the fault of incompetent personnel, not the lethal injection protocol or the drugs used. Prior to that the state had a near perfect record, with many executions.
Its, widely, reported that Lockett died from a heart attack. The coroner ruled he died because of lethal injection.
Innocents at Risk
The 160 "exonerated" from death row has been part of a very well known deception, for about 20 years, with a 70-83% error rate in the "exoneration" or "innocence" claims , as any fact checker knows, finding that anti death penalty folks had just redefined "exonerated", "innocent" and "wrongful conviction", as if they had redefined lie as truth and stuffed a bunch of cases into those fraudulent definitions (13).
There may be proof that there have been 0.4% actual innocents on death row, since 1976 - a 99.6% accuracy rate in guilty findings, with a 100% rate in releasing those 0.4% actual innocents (13) - very likely the most accurate of any government program, as prosecutors and penalty experts are aware.
As the death penalty and executions, respectively, have enhanced due process and enhanced incapacitation effects, over LWOP, we know the death penalty protects innocents to a higher degree than does LWOP (14).
Deterrence has never and can never be excluded from the death penalty/executions (or any sanction) (14) and history and reason tell us that the death penalty is an enhanced deterrent over LWOP, as life is preferred over death and death is feared more than life (14). What is preferred more deters less. What is feared more deters more.
All sanctions, all negative prospects, all potential negative outcomes and all negative incentives deter some.
Some 16,000 innocents have been murdered by those KNOWN murderers that we have allowed to murder, again - recidivist murderers - just since 1973 (14).
Up to 400,000 innocents have been murdered by those known criminals that we allowed to harm, again, recidivist criminals, also since 1973 (14).
The last credible claim for an innocent executed is from the 1930's.
Where is "the innocents at risk" problem?
Fear of Executing the Innocent
A Nov. 2010 Angus Reid poll found 83% death penalty support, 13% opposition when,with the same respondents, 81% believed that innocents have been executed (15), showing the opposite of a turning away from executions based upon the, largely, misleading innocence claims presented by anti death penalty folks.
A 2013 Angus Reid poll found 86% death penalty support in the US (16). No media outlet picked it up, as is their rule, which is to only use polls showing the lowest support (16).
So, of course, we have this: "Richard Dieter (Death Penalty Information Center - DPIC) states: "I think the (death penalty and execution) decline begins with the revelations about mistakes in capital cases — that innocent people could get the penalty and almost be executed has shocked the public to the point where death sentences are harder to obtain." (17) - the opposite of the truth.
The evidence is that the death penalty is a greater protector of innocents, than is LWOP (14), which would result in even more support for the death penalty.
"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing."
For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape. (8)
As robbery/murder is, by far, the most common death penalty eligible murder, the multiples may be even greater.
Fact checking the cost studies reveals that the death penalty can and should save costs over LWOP as demonstrated by Virginia and, likely, North Carolina and Texas and others (18). In addition, virtually all of the costs studies are incomplete, inaccurate or fraudulent (19) or make no attempt at a true apples to apples comparison between the death penalty and LWOP costs (20), the only relevant cost review .
When polling asks "Do you support the death penalty for murder?" and the responses offered are - sometimes - always - or - never - death penalty support is in the 80% range, as per Gallup, Angus Reid and Quinnipiac polling (16).
A Nov. 2010 Angus Reid poll found 83% death penalty support, 13% opposition when,with the same respondents, 81% believe that innocents have been executed (15), showing the opposite of a turning away from executions based upon the, largely, misleading innocence claims presented by anti death penalty folks.
NOTE: The 6 states which have repealed the death penalty, since 2006, all had Democratic governors, with Democrat majority legislators, with the exception of Nebraska, which has no party affiliations within their unicameral legislature. A signature based referendum effort has, already, reinstated the death penalty, with the, likely, result that Nebraska's citizens will, also, reject the death penalty repeal in Nov. 2016.
In 2016, California, the bluest of blue states, had a voter referendum, which rejected death penalty repeal and supported speeding up executions - in California!
It was Califonia's third voter referendum, in recent years, supportive of the death penalty.
The 5 Governors who have stopped executions in their state by executive order or obstruction are all Democrats.
In those 11 states, the majority of the citizens support the death penalty, Not very democratic to repeal or stop the death penalty/executions, eh?
The evidence is that the death penalty is a greater protector of innocents, than is LWOP (14), which would result in even more support for the death penalty.
Adoption of Life Without Parole Caused the Death Penalty Drop in Texas
There was a 69% drop in death sentences, in Texas, from 48 in 1999 to 15 in 2005, PRIOR to LWOP having any effect on death sentences (21).
The first year that the LWOP law could have had any effect on death sentences was in 2006, with 11 death sentences (21).
In 2007, death sentences rose by 36%, to 15 (21).
Bottom Line: None of these offer any reason to reduce either the death penalty or executions.
1) United States and Texas
United States: I used national data, instead of only states with the death penalty, which should be the subject data. However, all the death penalty states did see significant drops in murderers, as well as in the secondary factors, which combined with murder, create capital, death eligible murders.
I use The Disaster Center because of their ease of use and accuracy, using FBI data
2) There are judicial decisions, within each state, as well as with SCOTUS, affecting all death penalty states, as with cases since 1991, Schlup, Ring, Atkins, Tennard, Roper, Hill, House, Medellin, Baze, Kennedy, Harbison and, now, Hurst and more. 6 states have repealed the death penalty, with 5 additional suspending executions, since 2007.
3) Judges Responsible for Grossly Uneven Executions
4) Saving Costs with The Death Penalty
5) Table 17, Prisoners sentenced to death and the outcome of the sentence, by jurisdiction, 1973–2013, Capital Punishment, 2013, US Bureau Of Justice Statistics, December 2014, http://www.bjs.gov/content/pub/pdf/cp13st.pdf
6) Three Major Steps to Reduce Death Penalty Delay in California, Crime and Consequences blog, Bill Otis, August 8, 2015,http://www.crimeandconsequences.com/crimblog/death-penalty/
7) a) Table 11, Number of inmates executed, by race and Hispanic origin,
b) The Death Penalty and Medical Ethics Revisited
8) a) Blume, John H.; Eisenberg, Theodore; and Wells, Martin T., "Explaining Death Row's Population and Racial Composition" (2004), Cornell Law Faculty Publications,
b) 508 executions with 69, 384 murders from 1974-2013.
9) Table 10, Average time between sentencing and execution, 1977–2013, Capital Punishment, 2013, US Bureau Of Justice Statistics, December 2014, http://www.bjs.gov/content/pub/pdf/cp13st.pdf
10) Rebuttal: Botched Executions
11) 'It Feels Like Acid.' Charles Warner's Final Words Stir Execution Questions', Sean Murphy, AP, in Huffpost Crime, Updated Jan 18, 2015
12) No "Botched" Execution - Arizona or Ohio
13) The Innocent Frauds: Standard Anti Death Penalty Strategy
14) The Death Penalty: Saving More Innocent Lives
15) US Death Penalty Support at 80%: World Support Remains High
World Support Remains High
95% of Murder Victim's Family Members Support Death Penalty
17) "Executions in US drop close to 20-year low in 2013", Boston Globe, Pete Yost, AP, 12/19/2013
18) RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
19) Saving Costs with The Death Penalty
20) Death Penalty Costs vs Life Without Parole Costs: Study Protocol