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Courts, States Put Death Penalty on Life Support

By Richard Wolf and Kevin Johnson | USA Today | September 14, 2015



If there is such a thing as a lock for the death penalty, the case against Daniel Higgins appeared to be just that.

Already sought for sexually assaulting a child, Higgins killed Sheriff’s Sgt. Michael Naylorlast October with a point-blank shot to the head, making him the only deputy slain in the department’s 130-year history. “I wanted him dead,” Sheriff Gary Painter says of the murderer.

But Naylor’s widow, Denise Davis, said she couldn’t bear the likely rounds of appeals that could stretch on for decades. Higgins was allowed to plead guilty and was sentenced to life without the possibility of parole.

The death penalty in America may be living on borrowed time.

The emotional and financial toll of prosecuting a single capital case to its conclusion, along with the increased availability of life without parole and continuing court challenges to execution methods, have made the ultimate punishment more elusive than at any time since its reinstatement in 1976.

Prosecutors, judges and juries also are being influenced by capital punishment’s myriad afflictions: racial and ethnic discrimination, geographic disparities, decades spent on death row and glaring mistakes that have exonerated 155 prisoners in the last 42 years.

Those trends may be squeezing the life out of the death penalty. That doesn’t even take into account the added burden of legal clashes, legislative repeals, and problems finding and administering drugs for lethal injections.

The Supreme Court in June upheld a controversial form of lethal injection by the narrowest of margins, thereby giving Oklahoma the green light to reschedule three executions. But courts in many states continue to wrestle with that issue, and the justices have four more death penalty cases on their docket this fall challenging the roles of Kansas juries, Florida judges and Georgia prosecutors.

“The imposition and implementation of the death penalty seems capricious, random, indeed arbitrary,” Supreme Court Justice Stephen Breyer said in dissenting from the court’s June decision allowing the continued use of a problematic sedative for lethal injections. “From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning.”

Even in Texas — long home to the most active execution chamber in the country — the death penalty is on the ropes. The state sentenced 48 people to death as recently as 1999. So far this year? Not a single one.

In Colorado last month, jurors couldn’t agree on the death penalty for James Holmes, who killed 12 people watching The Dark Knight Rises at an Aurora movie theater three years ago. Their indecision resulted in an automatic sentence of life without parole.

The sobering conclusion reached by Naylor’s widow — that the lengthy pursuit of the death penalty wasn’t worth the personal sacrifice — illuminates the forces now contributing to a precipitous drop in death sentences across the nation, as well as the declining numbers of those who reach the execution chamber.

Among signs the death penalty may be on life support:

• The number of death sentences dropped from a high of 315 in 1996 to 73 last year – half of them coming in just 2% of the nation’s counties.

• The number of prisoners on death row peaked at 3,593 in 2000 but now hovers around 3,000, a 17% decline.

• The number of executions peaked at 98 in 1999 and has dropped since then, hitting a low of 35 last year. In the first eight months of this year, 20 prisoners have been killed — 16 of them in Texas and Missouri.

• Seven states have repealed the death penalty since 2007. Among the 31 that retain it, governors have imposed a moratorium in four, and most others haven’t executed anyone in years. Only seven states carried out executions in the past two years.

• The federal government has not carried out an execution since 2003. An unofficial moratorium has been declared pending the completion of a Justice Department review of the death penalty ordered last year by President Obama.

However, the average time spent on death row for those eventually executed continued to rise until 2011, reaching a peak of 16.5 years before dipping to 15.5 years in 2013.

For all the ethical arguments made by death penalty opponents — “abolitionists,” in the words of Supreme Court Justice Antonin Scalia — states now are faced with a more practical problem: how to carry out executions.

All states favor lethal injection as the most humane method, but the supply of drugs that can do the job has been drying up because of a confluence of factors. They include: opposition to capital punishment in Europe, where many of the drugs are produced; federal regulations preventing the importation of drugs that don’t meet U.S. standards; and recalcitrance by doctors and pharmacists who work to save lives, not end them.

Still, the Supreme Court has twice upheld the constitutionality of lethal injection, first in 2008 and again in June, when the justices ruled 5-4 that Oklahoma can use a sedative involved in three botched executions last year. Justice Samuel Alito, writing for the majority, said challengers could not suggest a better alternative.

The ruling gave impetus to states such as Alabama and Mississippi seeking to jump-start executions after a hiatus of several years. But it also rejuvenated legal efforts by groups opposed to the death penalty, who continue to fight against lethal injection protocols in several states.

Caught in the middle are people like Richard Glossip, Oklahoma prisoner #267303, who lost the Supreme Court case in June and now faces execution this Wednesday at the state penitentiary in McAlester. It’s the fourth time a date has been set for his death.

Glossip, twice convicted of masterminding a 1997 murder at the run-down budget motel he managed, still proclaims his innocence. “If they execute me, then I want it to be for a reason,” he said during a lengthy phone interview. “What I want to come out of that is that they finally stop executing innocent people in this country.”

Several states took the high court’s ruling as a reason to rejuvenate the death penalty. Missouri wasted little time resuming executions, putting David Zink to death two weeks later, on July 14. Texas, by far the nation’s leader in executions with 528 since the Supreme Court reinstated capital punishment in 1976, followed suit with an execution in August and has six more on tap this year.

States from Florida to Montana that have not killed anyone for several years are in court, seeking to rejuvenate dormant death penalties. Some states are establishing backup methods in case lethal injections become impossible. Eight permit electrocution, three allow gas chambers, three allow hanging, and two would use firing squads – as Utah did in 2010 and 2013.

The Supreme Court has chipped away at states’ freedom to choose the ultimate punishment, first in 2002 by exempting those with intellectual disabilities, then in 2005 by exempting juveniles who were under 18 when they committed their crimes. In the latter case, decided 5-4, Justice Anthony Kennedy said trends against juvenile death penalties in the states had created a “national consensus.”

Today, there is a similar consensus: Two-thirds of the states have held no executions since 2010. And the percentage of Americans who favor capital punishment is down from 78% two decades ago to 56% today, according to the Pew Research Center.

“There seems to be a massive reassessment underway in this country in terms of capital punishment,” says Kathryn Kase, executive director of the Texas Defender Service, which provides legal aid for those facing death sentences. “Everywhere you look with the death penalty, there’s a problem.”

Read the rest of this investigative journalistic piece, originally published by USA Today, here.