On the surface, this week's ruling by the Ninth Circuit court of appeals - overturning the death sentences of more than 100 inmates in Arizona, Montana, and Idaho - is the latest sign of statistical retreat for capital punishment in America.
It comes just eight months after Illinois Gov. George Ryan commuted the sentences of 167 inmates, citing growing concerns that the harshest judicial penalty was not being implemented fairly.
Combined, those moves may remove three times as many people from from death row as were executed last year. But that doesn't necessarily mean the death penalty is in decline.
America has around 3,500 inmates on death row - a number that has fallen only slightly and is still more than almost any other country. Last year, 71 prisoners were executed, and 52 this year. (Another in Florida was scheduled for execution Wednesday.)
Ultimately, the two trends may reflect Americans' ambivalence about a penalty that most still believe in but are more hesitant to inflict. On the one hand, legislatures are enacting tough-on-crime laws. Attorney General John Ashcroft has been an active proponent of tough sentencing. And 74 percent of Americans favor the death penalty for a person convicted of murder, according to the latest Gallup Poll in May. (The number drops to 53 percent when life without parole is an alternative.)
But far fewer criminals are getting death sentences today than did a decade ago. It's no longer OK to execute the mentally retarded, and courts seem to be moving against executing juveniles. With some sentences being overturned on the basis of DNA evidence, the public is increasingly engaged in a debate over the fairness of a system that may mete out life and death based on such arbitrary factors as race, quality of defense, and where the crime was committed.
"Within the public, there is still an acceptance of the death penalty as a just penalty," says Eric Sterling, head of the Criminal Justice Policy Foundation in Silver Spring, Md. But the support is increasingly conditional. The public only supports it, he says, "if it can be imposed properly." But more and more, "the public has a lot of worries that in many instances it's not being imposed properly."
The ruling by the Ninth Circuit - which is considered America's most liberal federal circuit court - ultimately hinges on a question of how to apply a 2002 US Supreme Court decision. That ruling decreed that juries - not judges - must decide sentences in capital cases.
The Ninth circuit ruled that the Supreme Court's decision should be applied retroactively to all death-penalty cases. But two other federal circuit courts have made an opposite ruling - that the Supreme Court's decision does not apply retroactively. Ultimately the high court may have to referee the debate. If the Ninth Circuit decision stands, convicts in the affected states could be entitled to new penalty trials by juries.
Some experts point to a growing hesitance to impose the death sentence. In the 1990s, about 300 people came onto death row each year, says Richard Dieter, director of the Death Penalty Information Center in Washington. By 2001, the last year for which official statistics are available, that number had been halved to about 150.
Mr. Dieter believes the drop reflects growing ambivalence about the fairness of the system, juries' increasing unwillingness to impose the penalty, and states' reluctance to pursue the death penalty - an expensive process - with budgets so tight. "It's an attrition of the death penalty rather than an abolition - a slow wearing away for very practical reasons." Between appeals, commutations, reversals, and prisoners dying of other causes, only about 10 percent of those given the death penalty are executed.
Still, polls indicate that the death penalty is still widely accepted. "It's the will of the people," says Dianne Clements of Justice for All, a pro-death-penalty group. Popular support, she says is what "drives - and should drive - the law of the land."