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9 reasons the death penalty is on the decline in America

The death penalty is on the decline in America. Executions hit a 20-year low in 2014, and most recently, Nebraska became the first conservative state in 40 years to repeal capital punishment. Several other states, from Pennsylvania to Colorado, have put executions on hold. There are several reasons states are doing this — starting with popular opinion.

Americans are turning against the death penalty

A majority of Americans still support the death penalty. But support for capital punishment has trended down since the 1990s: Gallup surveys found support dropping from a peak of 80 percent in 1994 to 63 percent in 2014, and Pew Research Center surveys showed a drop to 56 percent in 2015.

Pew Research Center

About 40 percent of Americans who oppose the death penalty told Gallup it's wrong to take a life, while 17 percent said the person may be wrongfully convicted, and another 17 percent cited religious beliefs, or said punishment should be left to God.

Support for the death penalty is less pronounced when Americans are offered more options than just yes or no. A Quinnipiac University poll from June 2015 found 48 percent of Americans say a person convicted of murder should be sentenced to life without parole, while 43 percent preferred the death penalty.

While most Americans still support the death penalty, opposition is concentrated in certain demographic groups. For example, 40 percent of Democrats told Pew in 2015 they favor the death penalty, compared with 71 percent in 1995 — a much steeper decline in support than the 22-point national drop.

The death penalty is also more culturally and legally ingrained in some states, particularly in the South and West, than the rest of the country. In Massachusetts, for instance, the death penalty is banned, and nearly 55 percent of respondents in an April 2015 Boston Globe poll said they oppose it. So while support for the death penalty may remain relatively high at a national level, it can mask some of the deep opposition at the state level.

The steady drop in support, especially among certain states and demographics, signals a shift in views and attitudes of Americans. And when compounded by other problems facing capital punishment, it's likely that support for the practice will continue to drop in the near future.

Europe banned exporting drugs used in lethal injections

Since the 1980s, lethal injection has been the favored form of execution in the US. In 1982, Texas became the first state to use lethal injections, paving the way for many more states that were looking for a humane alternative to the electric chair, which could produce grisly visuals like burned hair and flesh.

John West/Quartz

Until the late 2000s, most states used a three-drug combination for lethal injections: an anesthetic — typically sodium thiopental — to put inmates to sleep, then two other drugs that actually kill the inmate. But after 2009, states have been unable to secure a steady supply of sodium thiopental, leading them to resort to experimental alternatives that have sometimes led to botched executions and invited more public scrutiny.

The drug shortage began around 2010, when drug suppliers around the world, including in the US, began refusing to supply sodium thiopental for the injections — out of either opposition to the death penalty or concerns about having their products associated with executions. "The drugs were being cut off right and left," Deborah Denno, a death penalty expert at Fordham University, said.

Hospira Inc. was the sole US-based supplier of sodium thiopental, according to Denno. But Hospira stopped producing the drug in 2011, after struggling to procure active ingredients for its production and fielding legal threats from authorities in Italy, where the death penalty is vehemently opposed.

Some states still managed to import sodium thiopental from shadier overseas sources. But beginning in 2012, the US District Court of the District of Columbia issued several rulings banning imports of the drugs, deciding that the imported supplies didn't meet FDA regulations.

As the shortage continued, states turned to other European companies for alternative drugs, such as phenobarbital and propofol, which are typically used as sedatives for surgeries. But these companies — under pressure from a European Union export ban, activists like Reprieve, and foreign governments that prohibit the death penalty — refused, over time, to supply the drugs.

As these companies either stopped supplying drugs or were unable to export to the US, states began to look for new — and sometimes untested — ways to execute prisoners. But these methods have been associated with several high-profile botched executions, leading to more public scrutiny against the death penalty. So not only have states been struggling to maintain their lethal injection drug supplies, but they've also been facing more criticism as opponents of the death penalty question whether the experimental lethal injection protocols in use now are safe.

A major source of lethal injection drugs may be getting out of the business of executions

With traditional supplies of lethal injection drugs drying up, states have turned to loosely regulated compounding pharmacies to make the drugs. The US-based pharmacies, which put together custom drugs, began to produce experimental, sometimes secretive cocktails for states' executions.

Compounding pharmacies were originally meant to make custom drugs for individual people, not major buyers like state governments, Deborah Denno, a death penalty expert at Fordham University, said. As a result, their drug cocktails can often be very shoddy — Georgia stopped an execution because its lethal injection drug was "cloudy" — and have been decried as experimental and dangerous by civil rights groups such as the American Civil Liberties Union.

But even compounding pharmacies may soon stop providing execution drugs to states. The International Academy of Compounding Pharmacists on March 24, 2015, announced that it "discourages its members from participating in the preparation, dispensing, or distribution of compounded medications for use in legally authorized executions."

Mario Villafuerte/Getty Images

The stance may be a way for compounding pharmacies, which are loosely regulated, to avoid the extra regulatory scrutiny that can come with producing lethal injection drugs. "These compounding pharmacies already have enough of a [public relations] issue," Denno said. Massachusetts, for instance, passed a law in 2014 cracking down on compounding pharmacies after a local company's drugs were implicated in the deaths of more than 60 people. Producing lethal injection drugs, Denno said, "is only going to invite further scrutiny."

But instead of stepping up regulations, some death penalty states have adopted measures to shield compounding pharmacies that provide lethal drugs from outside scrutiny. In December, Ohio passed a law that will keep suppliers of lethal drug injections anonymous. John Murphy, executive director of the Ohio Prosecuting Attorneys Association, which supports the law, said last December that the changes are not meant to make the execution process more secretive. "This just protects the identity of the people involved so they don't get harassed, intimidated, or attacked," he said.

Still, the official stance by the International Academy of Compounding Pharmacists could have ripple effects among its members. And if states can't obtain drugs from these outlets, they may not be able to get lethal injection drugs at all.

The horrifying botched executions of 2014

As states used experimental lethal injection protocols to continue their enforcement of the death penalty in 2014, several botched executions were linked to a sedative known as midazolam, which has been unproven for executions — raising new questions about whether states' new protocols violated constitutional protections against cruel and unusual punishment.

Here are some of the cases, which happened in 2014:

  • Dennis McGuire, Ohio: McGuire took 26 minutes to die after the state used a mixture of hydromorphone and midazolam, according to the New York Times's Erica Goode. McGuire gasped and snorted before he died.
  • Clayton Lockett, Oklahoma: Lockett struggled violently and groaned after the state injected a combination of midazolam, vecuronium bromide, and potassium chloride, the Guardian's Katie Fretland reported. State officials then halted the execution, but Lockett died 43 minutes after the drugs were injected.
  • Joseph Wood, Arizona: Wood took nearly two hours to die after the state used a mixture of hydromorphone and midazolam, according to the Guardian's Tom Dart. Wood, who gasped and gulped before he died, was injected with 15 times the amount of drugs called for in the state's execution protocol by the time he was pronounced dead.

These botched executions drew criticism and put an unwanted spotlight on the use of experimental lethal drugs, which critics say is a violation of constitutional protections against cruel and unusual punishment. Some states, including Ohio and Oklahoma, have delayed further executions as they review their practices.

Deborah Denno, a death penalty expert at Fordham University, expects these problems to continue as states struggle to replace superior drugs like sodium thiopental, an anesthetic that is no longer accessible for executions in the US. "Every time a state changes to a new drug, it introduces a degree of uncertainty," Denno said. "These drugs aren't the first choice."

And with that uncertainty comes a greater chance of botched executions — and more scrutiny.

Legal challenges are mounting against lethal injection drugs

Following several high-profile botched executions and states' turn to experimental drugs for executions, critics of the death penalty have mounted legal challenges against states' current lethal injection drug protocols.

One of the challenges ended up at the Supreme Court — following the botched April 2014 execution of Clayton Lockett in Oklahoma. Lockett's execution, which took 43 minutes after experimental lethal injection drugs — including the controversial sedative, midazolam — were administered, led Oklahoma inmates to file a lawsuit challenging the state's lethal injection protocol. But the court ultimately sided with Oklahoma.

Tracy Woodward/Washington Post via Getty Images

Specifically, the inmates are contesting the state's use of midazolam, a sedative used as part of a three-drug protocol to execute death row inmates. Midazolam is supposed to put someone to sleep, allowing the painless application of two other drugs that actually kill the inmate. But Lockett appeared to groan and struggle violently during his execution, suggesting the drug wasn't adequate — and may violate constitutional protections against cruel and unusual punishment.

The Supreme Court decided that the inmates didn't prove the use of midazolam violated Eighth Amendment protections against cruel and unusual punishment. But that doesn't mean others in the future couldn't bring new evidence to the courts to prove that midazolam — or some other lethal injection drug — violates the Eighth Amendment. So it's still possible that the threat of further litigation could scare some states from continuing their use of lethal injection drugs, perhaps leading them to try new execution methods or abolishing the death penalty altogether.

States may have to choose between the firing squad and ending the death penalty

As states have struggled to maintain their lethal injection drug supplies, several have legalized other methods of execution as backup options in case they run out of the drugs: Tennessee reinstated the possibility of the electric chair, Utah allowed the firing squad again, and Oklahoma has permitted nitrogen gas. But there is another option: Nebraska, for example, abolished the death penalty altogether.

The shift to other methods of execution could hasten the death penalty's demise. Most US adults told YouGov in a February 2015 survey that the gas chamber, electric chair, firing squad, hanging, and beheading are cruel and unusual punishment, while lethal injection isn't.

YouGov

But some experts argue that lethal injection is not and has never been the most humane method of execution — even before states began turning to other execution methods, according to Gruesome Spectacles, a book by Austin Sarat, a professor at Amherst College in Massachusetts.

Based on these numbers, Deborah Denno, a death penalty expert at Fordham University, argued that the firing squad may turn out to be the most humane of the available options, even above lethal injections. "It's the quickest, the surest, and you have trained executioners to do it," she said.

Still, the public perception is that lethal injection is the most humane way to execute someone. So as states are forced to choose between other methods and abolishing the death penalty, abolition may win out.

At least 4 percent of people who are sentenced to death are likely innocent

One of the main criticisms of the death penalty is that it could be used against people who aren't guilty of the crimes they're convicted of. A Pew Research Center survey found most Americans, even supporters of capital punishment, believe this to be true. And an April 2014 study published in PNAS, a scientific journal, suggested that at least 4 percent of people sentenced to death in the US are likely innocent.

Several groups have tried to tally the number of inmates who have been exonerated from death row in the past few years — people who were on the cusp of being executed but were proven to be not guilty of the charges leveled against them. In 2014, at least six people were exonerated of death sentences, according to a January 2015 report from the National Registry of Exonerations. Overall, at least 154 people have been exonerated from death row in the US since 1973, according to the Death Penalty Information Center.

As these exonerations get more media attention, they add to the opposition to the death penalty. Unlike life imprisonment, executions are completely irreversible — making any mistake in the justice system wholly unacceptable to opponents of capital punishment.

The death penalty is applied in a racially skewed manner

Like just about everything else in the criminal justice system, the death penalty is racially skewed.

As the Death Penalty Information Center data shows, black convicts are placed on death row and executed at disproportionate rates. Conversely, 15.2 percent of cases that resulted in the death penalty had a black victim, while 75.8 percent had a white victim. So not only are black people more likely to be executed, they're also a lot less likely to have someone who committed a crime against them get the death penalty.

Several factors play into the racial disparities, but much of it has to do with jury selection. In death penalty cases, jurors are required to be open to the idea of capital punishment. But black Americans are less likely to support the death penalty, according to the Pew Research Center, which makes them more likely to get kicked out of jury selection. That could affect racial outcomes, since white juries might be more likely to exhibit subconscious biases that associate blackness with criminality.

Whatever the cause, the skewed outcomes are another reason for people to oppose the death penalty. With racial disparities in police use of force and the criminal justice system getting more attention since the Ferguson, Missouri, police shooting of Michael Brown in August 2014, unequal application of the death penalty is likely to come under higher scrutiny as well.

Executing a death row inmate costs up to four times as much as life in prison

The exact costs vary from state to state, but death penalty cases seem to cost from 1.5 to four times as much as non-death penalty cases, according to the Death Penalty Information Center. For example, one study commissioned by the legislature in Nevada found the price of a murder trial in which the death penalty was sought was up to $1.3 million, while cases without the death penalty cost $775,000.

The higher cost is driven by more extensive court processes, from jury selection to appeals, in death penalty cases. These extra checks are in place to try to ensure the government doesn't make a mistake and execute an innocent person — although that certainly still happens, suggesting even the current checks may not be enough.

Prison is the cheaper alternative to death row.

David Greedy/Getty Images

For those higher costs, the public doesn't get much in return. About 88 percent of criminologists don't believe the death penalty deters homicides, according to a 2009 study published in the Journal of Criminal Law and Criminology. About 61 percent of Americans said the death penalty doesn't deter serious crime, according to an April 2015 survey by the Pew Research Center. And a February 2015 review of the research by the Brennan Center for Justice found no evidence that the death penalty had an impact on crime in the 1990s and 2000s.

The high cost and little gain is one of the reason conservative legislators in Nebraska backed the abolition of the death penalty in the state. "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years," state Sen. Colby Coash (R) said, according to the Associated Press. "This program is broken. How many years will people stand up and say we need this?"

The focus on financial costs has been deployed by criminal justice reformers in recent years to pass prison sentence reform and pull back mass incarceration in conservative states like Georgia. Given their success in Nebraska, linking the abolition of the death penalty to fiscal responsibility also might be how death penalty opponents push their agenda in other conservative states as well.

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