DEATH PENALTY ON TRIAL: Executions are down, while state attention to capital punishment is up.

AuthorWidgery, Amber
PositionCRIMINAL JUSTICE

New death sentences and executions remain at near historic lows. Nationwide, 25 executions were carried out in 2018, compared with 98 in 1999.

There are myriad reasons for the decline in numbers in recent years, but lengthy litigation of appeals and difficulties carrying out executions certainly have had an impact and have drawn the attention of policymakers. Last-minute stays of execution from the courts and an inability to legally obtain the drugs necessary for lethal injections have caused delays. And, in some states, concerns about the entire process, from investigation through execution, have resulted in gubernatorial moratoriums on all executions, the most recent being in California.

These complications have also forced states to change their laws and protocols and have led several states to move away from executions altogether.

Last year Washington became the 20th state to overturn or abolish capital punishment when the state supreme court found the death penalty "invalid because it is imposed in an arbitrary and racially biased manner," Chief Justice Mary Fairhurst wrote for the court.

The court left the door open for the Legislature to "enact a 'carefully drafted statute' to impose capital punishment." Instead, Washington Attorney General Bob Ferguson (D) requested that Senator Reuven Carlyle (D) introduce legislation to remove the statute from the books entirely, a measure Governor Jay Inslee (D) promised to sign. The bill was voted out of the Senate but later stalled in the House. Majority Floor Leader Monica Stonier (D) said that leadership prioritized other measures, including changing life sentences and three-strikes laws to "have an impact immediately in the next year on people's lives." There was no risk in holding off until next year, she said, since capital punishment is currently illegal.

A Narrowing Field

Several U.S. Supreme Court rulings over the past two decades have narrowed the death penalty's application in the states. Based on the Eighth Amendment's ban on cruel and unusual punishment, the high court abolished the death penalty for intellectually disabled offenders in 2002, for juvenile offenders in 2005 and, in 2008, for raping a child when death is not the intended or actual result.

The cases regarding intellectual disabilities have possibly had the most significant impact in the states. The 2002 Atkins v. Virginia decision prohibited the execution of "mentally retarded" defendants but left it to the state to...

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