What's behind decline in death sentences

Americans are using the ultimate punishment less and less. But that doesn't mean it's on the way out.

Andrea Yates, the Green River Killer, Washington-area sniper Lee Boyd Malvo, Unabomber Ted Kaczynski, Oklahoma City bomber Terry Nichols.

Some call these recent killers the worst of the worst - the reason capital punishment exists. But while they all sit in prison, none will be put to death.

Some took plea deals to avoid the possibility; others were spared the ultimate punishment by juries who didn't think it made sense in their cases. But they all reflect the current downward trend in death sentences nationwide.

When the United States Justice Department recently released statistics showing that the number of death sentences imposed in 2003 had hit a 30-year low, it deepened a debate over society's ultimate punishment, fueling a controversy that has simmered from statehouses to courtrooms for years.

Opponents read the decline as part of growing public uneasiness, as exonerations based on DNA evidence continue. Supporters say the drop simply reflects a decline in murder rates and changes in sentencing laws. What no one seems to dispute is that the numbers are dropping: Only 144 new inmates were sent to death row last year, down from a high of 320 in 1996.

In addition, the number of executions actually carried out is falling, as well as the number of murder cases submitted for capital-punishment consideration. The explanations are varied and conflicting.

As the debate goes on, all eyes are on the US Supreme Court and its pending decision on whether juvenile offenders should be eligible for the death penalty - a case that will test the court's barometer of public sentiment, not only on juvenile executions, but on capital punishment more generally in the United States, one of the only countries that still allows it.

"Much depends on this juvenile case," says Michael Radelet, a sociologist at the University of Colorado in Boulder, and an expert on Florida's death row. "But the downward trend has been happening for [several] years."

In Florida, for instance, almost 40 people were sent to death row annually in the 1990s. By 2001, that number was 16, and today it is only eight. Dr. Radelet attributes the decline to a combination of factors: the media's attention to wrongful convictions, the high cost of prosecuting capital cases, and the passage of life-without-parole laws, which many states enacted in the mid-1990s and which give jurors an option short of death but severe enough to ensure that a criminal will never rejoin society.

In Ohio, for instance, death sentences have been cut by almost a third since the state enacted its life-without-parole law in 1996, and the numbers are even higher in Florida. Only two of the 38 death-penalty states lack that option: Texas and New Mexico - and New Mexico has only two inmates on its death row.

Texas, with 446 inmates on its death row, is the exception - and a big one - to the national trend. The state continues to put an average of 34 people on death row each year, and many experts point to the fact that Texas juries do not have the range of options that exist other states. Here, the choice is between life with parole and death.

"When juries in Texas consider what is an appropriate sentence, life with parole has got risks associated with it," says Richard Dieter of the Death Penalty Information Center, which opposes the punishment. "But polls show that the public wants alternatives to the death penalty."

A recent state poll, for instance, shows that 78 percent of respondents are in favor of changing the law to allow life in prison without parole. It has failed in past legislative sessions, but will be offered again in the upcoming session. Yet 3 in 4 Texans also still support the death penalty - even though 70 percent believe that the state has executed an innocent person.

Such poll numbers are lower nationally, but the inconsistencies between these two ideas remain, says Franklin Zimring, a law professor and director of the criminal-justice research program at University of California at Berkeley. "The United States is the world capital of ambivalence on this issue. We don't want to see innocent people executed, but we don't like murderers."

Still, some insist the two seemingly incompatible ideas can be reconciled, and that the societal benefits of capital punishment outweigh its risks.

"If you have the same system for the next 100 years, the odds are that an innocent person will be executed," says Joshua Marquis, the district attorney in Astoria, Ore., and a death-penalty supporter. "But is that going to change my opinion that the death penalty is necessary? No."

Mr. Marquis says part of the decline in death sentences has to do with medical advances in the past 30 years. Victims of gunshot wounds, for instance, are being saved at higher rates - making irrelevant the need for capital charges.

Also, he says, crime rates have decreased while pressure to not seek the death penalty has risen because of the high costs associated with it.

But perhaps most important, he says, prosecutors have become more discriminating in the kinds of capital cases they present to juries. A murder case may be eligible for the death penalty, for instance, but that doesn't mean it should be charged that way: Mitigating factors, such as the defendant's history and mental health, should be taken into account along with the circumstances of the crime.

"I don't think [the decline in death sentences] signals a massive sea change in the public's perception of the death penalty," says Marquis, a board member of the National District Attorneys Association, "but rather a recognition by prosecutors and ultimately by juries that the punishment should be reserved for the worst of the worst."

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