Capital Punishment Update

Later this week, a group of superior court judges will gather at the School of Government to participate in a course on handling capital cases. In preparation for my role as a facilitator of the course, I have been reading up on death penalty news. Both in North Carolina and nationally, data show clear trends toward fewer capital cases, fewer death sentences, and fewer executions. This post briefly explores those developments and considers whether they are likely to continue.

Fewer capital cases. The Office of Indigent Defense Services released a study of capital cases and costs in late 2015. The study found that the state is proceeding capitally much less often – in only about 12% of potentially capital cases in FY15, down from 28% in FY08.

Fewer death sentences. The Death Penalty Information Center tracks the number of death sentences returned in each state each year. The Center’s North Carolina page is here, and it shows that between 0 and 5 death sentences have been returned each year over the past decade, down from a peak of 30 or so per year in the early 1990s. The IDS study referenced above reports that since 2007, just 2.2% of cases in which the state proceeded capitally resulted in a death verdict.

Fewer executions. In North Carolina, there has not been an execution since 2006 as a result of continued litigation over the state’s method of lethal injection as well as litigation about the effect of the repeal of the Racial Justice Act. Other states have also seen declines in executions. The Washington Post ran an article this weekend reporting that “[c]apital punishment in the United States is slowly and steadily declining, a fact most visible in the plummeting number of death penalties carried out each year. . . In 2016, there were 20 executions nationwide, the lowest annual total in a quarter-century.”

The Post story and others like it convey a sense of inevitability, as if it were foreordained that the death penalty will continue to dwindle until it disappears completely. That’s certainly a possibility, but I don’t see it as guaranteed. Several factors have likely contributed to the decline of capital punishment, including falling crime rates, changing public attitudes about the criminal justice system, more effective defense attorneys, and changes in the law. Some of those factors are likely permanent, but others aren’t. For example, the most recent available FBI data shows that violent crime increased 3.9% from 2014 to 2015. I don’t think it is easy to predict whether interest in the death penalty would increase if murder rates were to rise substantially. So I am in the “wait and see” camp regarding the fate of the death penalty, but I am interested in readers’ thoughts.

I should add that the School of Government is institutionally neutral on the death penalty as a matter of public policy, though of course individual faculty members may have opinions on the issue.