Abstract
Whether examined in the context of what is happening in the nation's courtrooms or in the arena of public opinion and legislative action, many indicators suggest that the death penalty in America is on the ropes. In the courtroom, death sentences have been in a steady nationwide decline for the past ten years even though the capital murder rate has remained relatively constant.1 Indeed, the years 2004 and 2005 saw the lowest number of annual death sentences imposed since 1973.2 The 125 new death sentences handed down in each of those years constitute a 61% drop from a post-Furman high of 317 death sentences imposed in 1996.3 On a more general level, opinion polls show some erosion in support for the death penalty among the public, from a high of 80% in a September 1994 Gallup poll to 64% in Gallup's October 2005 poll.4 Moreover, qualms are appearing within the institutions of state governments, with the New Jersey legislature recently enacting a moratorium5 and the New York legislature declining to re-enact the death penalty after the existing statute was ruled unconstitutional by the New York Court of Appeals.6 The Massachusetts House of Representatives voted 100-53 against a bill to bring back the death penalty under a statute that proponents had argued would be the "gold standard" for capital punishment by reducing the risk of wrongful executions.7 Yet while those favoring abolition of the death penalty understandably take heart from this trend, there are reasons to be cautious in extrapolating too far and too fast from these figures. At various other moments in our history the United States has appeared to be at a crossroads over the use of capital punishment, only to continue down the death penalty path in the end.8 As recently as the 1960s and early '70s, for instance, public support had fallen below 50%-indeed for a brief moment more Americans opposed capital punishment than favored it9-and the number of annual death sentences had dwindled even more dramatically than this past decade's decline.10 But by the mid-1970s public support for the death penalty had risen back above 60%,11 and the number of annual death sentences rose steadily from 1977 to 1996,12 evidencing an upward trend that statistically appeared as unstoppable as the downward trend of the past ten years appears now.13 Sounding this word of caution is not to argue that the death penalty is a permanent fixture on America's punishment landscape. Indeed, this Article will conclude that forces are at work that ultimately may spell the end for the death penalty in the United States. The road to abolition, however, is likely to be more complicated and rocky at both the courtroom and public opinion levels than a simple linear extrapolation of recent trends might suggest. At the courtroom level, for example, while there has been a steady drop in the number of death sentences over the past decade, it is uncertain how much further the decline will go without significant developments, such as forensic proof that an innocent person has been executed. Similarly, while it is true that public support for the death penalty has waned slightly since the mid1990s, approximately two out of every three Americans continue to voice approval of capital punishment,14 making it unlikely that public opposition will lead to widespread legislative repeals of the death penalty without further catalysts coming into play. This Article argues, therefore, that what has occurred over the past decade with the death penalty requires a more nuanced understanding than simply assuming that the decline in annual death sentences reflects a gradual and inexorable erosion in support for the death penalty that eventually will lead to its abolition. Plausible scenarios exist that would make the abolition of the death penalty possible,15 but it seems unlikely that the death penalty will end simply because an unstoppable downward momentum toward fewer death sentences has developed. …