As the year comes to a close, it is abundantly clear that the death penalty has fallen out of favor in America’s criminal justice system. This year will end with the second fewest executions since 1991.
With approximately 2,700 men and women on death row, the execution rate for 2019 was about .008 - less than one percent.
There are fewer prosecutors seeking the death penalty, fewer juries imposing the death penalty and fewer states carrying out the death penalty. In fact, of the 22 executions this year, nine were in Texas and only six other states were responsible for the rest.
The death penalty has been spiraling to unprecedented lows, as states conducted fewer than 30 executions and imposed fewer than 50 new death sentences for the fifth year in a row. There were only 34 new death sentences in 2019.
In 2005, the U.S. Supreme Court banned the execution of juveniles. In making the decision, the Court cited “evolving standards of decency.” In the analysis of evolving standards of decency the court considers the action of state lawmakers to establish a national consensus. When the case was argued, 30 states had banned the execution of juveniles.
This year, New Hampshire became the 21st state to abolish the death penalty and California joined Pennsylvania, Oregon and Colorado in imposing moratoriums on executions. In addition, more than a dozen Ohio inmates received reprieves as a result of lethal injection concerns.
As a result, according to the Death Penalty Information Center, half of all U.S. states have abolished the death penalty or currently prohibit executions. In fact, 32 states have either abolished the death penalty or have not carried out an execution in more than a decade.
Is the death penalty inching toward a national consensus opposing executions?
Here is some perspective on the efficiency of today’s death penalty. Since capital punishment was reinstated in California in 1978, 13 condemned inmates have been executed. During those 41 years, 82 death row inmates died from natural causes, 27 have committed suicide and 14 died from other causes.
Just this past week, 79-year-old condemned serial killer Lawrence Bittaker died of natural causes awaiting execution on death row at San Quentin. He had been waiting 40 years. He was convicted in California of kidnapping, raping, torturing and killing five teenage girls in 1979.
According to The Mercury-News, Bittaker outlived half the jurors in his case, the judge, the lead detective, an assistant prosecutor and 126 fellow death row inmates.
The absurdity of the death penalty doesn’t end there. In Pennsylvania, where the governor declared a “moratorium” on the death penalty, only three men have been executed in over 40 years. There are 154 men and women on Pennsylvania’s death row with little or no chance of being executed.
This year, U.S. Attorney General William Barr decided that he would schedule five federal prisoners for execution. The Federal government has executed only three men in the modern era of the death penalty and has not executed an inmate since 2003. Needless to say, the rush to resume executions was halted by the courts.
Some might say the death penalty is broken and should be abolished. In 2012, I wrote “The Executioner’s Toll, 2010” a book examining the history of the death penalty through the 46 executions carried out in 2010. One of condemned inmates I wrote about was John David Duty of Oklahoma. He was the last man executed in 2010.
Duty was serving a life-sentence for robbery, rape and kidnapping. He wanted the state to put him to death, so he murdered his cellmate and then sat down and wrote a letter to his cellmate’s mother taunting her about the killing. He then wrote the county prosecutor and made this ominous threat, “execute me or I’ll kill again.”
The current state of the death penalty may be absurd, but what do we do with the John David Dutys of the world?
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.