NEW HAVEN, Conn. — In the wake of Oklahoma’s horrifying mis-execution of Clayton Lockett, could the death penalty itself die off? It seems impossible, I know. Polls show support falling, but still at about 55 percent. And yet, that’s the death penalty in the abstract. On the ground, in many states, a different reality is playing out – one that demonstrates growing discomfort with capital punishment.
There is one looming exception to this rule: the South. The death penalty has become largely a regional phenomenon that divides the South – or, really, parts of the South – from the rest of the country. While the death penalty remains legal in 32 states, actual death sentences and executions are concentrated in a small and shrinking number of them. The death penalty won’t be abolished throughout America anytime soon. But it could quietly fall into disuse in all but a small number of holdouts.
It’s a story best told in numbers. Since 1976, when the Supreme Court reinstated the death penalty after temporarily blocking it, the South has accounted for 1,126 executions, the Midwest for 165, the West for 84, and the Northeast for four. Another way to look at this: only 2 percent of counties across the country account for 52 percent of the cases leading to execution. And in the last two years, only nine states have actually carried out an execution. They are Texas (23), Florida (12), Oklahoma (nine), Missouri (six), Ohio (four), Arizona (two), and one apiece in Virginia, Alabama and Georgia. Meanwhile, the nine states that have either imposed an official moratorium on the death penalty, or repealed it entirely, since 2007 are all outside the South.
Even more telling, as a measure of shifting approaches among prosecutors as well as judges and juries, is the list of states where capital punishment is still being ordered. Last year four defendants were sentenced to death in the Northeast, 10 in the Midwest, and 33 in the South. There were also 30 death sentences meted out in the West, but that number is misleadingly inflated. California accounts for 24 of the 30, and while judges can still sentence a convict to death there, that state has an undeclared moratorium, with no executions since 2006.
If you take a step back and look at the national picture, you see death sentences falling, with no more than 80 a year across the country since 2011, compared with tallies over 100 per year from 2001 to 2010 and often over 200 annually before that. (The peak was between 1994 and 1996, years in which there were 941 capital sentences overall.)
The real surprise in all these numbers is that while the South still accounts for most executions, it also accounts for a great deal of the drop. (When you start at the top, you have a long way to fall.) Compare the 1990s with the present, and capital sentencing turns out to be declining even in former Southern strongholds. In North Carolina, where concerns about racial fairness actually led to legislative action, no one has been executed in eight years. And there’s another Southern, red-turning-purple state that leaps out here: Virginia. In the last six years, only two defendants have received sentences for capital murder in the state. (One of the two asked for this.) Also, there are only eight people sitting on Virginia’s death row.
That is remarkable since for many years, Virginia was second only to Texas in executions. Together the two states have accounted for more than half of the national total since 1976. How to explain the change?
For starters, the politics shifted. “Most people are still ‘for it,' but no one votes for or against a political candidate because of the death penalty anymore, which means that prosecutors can settle almost any case without suffering any political fallout,” a Virginia defense lawyer told me. In Virginia, juries know they can impose a sentence of true life without parole, a punishment that addresses both the fear of putting a murderer back on the streets and the desire for retribution. For the families of victims, life without parole can provide far more closure than a death sentence, which involve 15 years of appeals on average – not to mention the prospect that the killer of your child or brother or mother could become a kind of martyr. “If Oklahoma had given Lockett life without parole, he would have never been heard of again,” Stephen Bright, president and senior counsel at the Southern Center for Human Rights, pointed out to me.
Bright singled out an additional factor to explain the declining use of the death penalty in Virginia: the quality of defense counsel. “Virginia used to have some of the worst lawyers in capital cases in the country – they paid them $800 per capital case,” he said. Now there are four regional defender offices, set up and paid for by the state. The lawyers who work in those offices know what they’re doing, and that means “every case is likely to be a halfway-fair fight between capable and experienced attorneys,” the Virginia defense lawyer told me. In a state that makes fairness a priority in the criminal justice system, the death penalty gets applied less.
In parts of the South, however, grim unfairness in the application of the death penalty is still frighteningly common. Take Florida, where the legislature last year moved to speed up the pace of executions. This is the place that has executed 77 death row inmates since 1976 while exonerating 24 – the most of any state. Claiming that they cared about preventing error, legislators promised to improve the quality of defense representation. But they set aside only $400,000 to reopen one public defender office.
Meanwhile, here’s some of the damage bad lawyering does. Last April, Judge Beverly Martin of the U.S. Court of Appeals for the 11th Circuit pointed out that at least 34 Florida death-row inmates have missed the one-year deadline for filing an appeal in federal court. Two of them have already been executed. Without federal review, Martin wrote, “we can offer no ‘guard against extreme malfunctions of the state criminal justice system.’ “ She also identified five cases in which her court and the U.S. Supreme Court stopped executions that probably would have been carried out if those prisoners, too, had missed their filing deadlines because of incompetent lawyers.
Clayton Lockett’s nightmarish execution in Oklahoma exposed the flaw in the American system of state-imposed death that is actually the easiest to fix. If lethal injection becomes untenable, states bent on execution can bring back the firing squad. The problems that are much harder to address are the ones President Obama listed after Lockett died: racial bias, uneven application, and the haunting but real prospect of accidentally executing the innocent. These deep injustices have persisted for decades. And they tend to be worst in the holdout states, which is also where there’s little or no support for a functional system of defense lawyers. That’s why the American death penalty should fall of its own rotten weight.
Bazelon is a Slate senior editor and a fellow at Yale Law School. She is the author of “Sticks and Stones.”