Following the themes of DPIC’s 2012 Year End Report, the lead edi­to­r­i­al for Jan. 2 in the New York Times con­clud­ed that ​“cap­i­tal pun­ish­ment is cru­el and unusu­al” as judged by the coun­try’s ​“evolv­ing stan­dards” of decen­cy and ​“should be abol­ished” by the Supreme Court. The Times​’s edi­to­r­i­al not­ed the few­er num­ber of states car­ry­ing out exe­cu­tions, the lack of any mean­ing­ful ratio­nale, the arbi­trari­ness of its appli­ca­tion, and the risk of exe­cut­ing the inno­cent as major prob­lems with the cur­rent death penal­ty. The edi­tors said the pri­ma­ry pur­pos­es for impos­ing cap­i­tal pun­ish­ment – deter­rence and ret­ri­bu­tion – ​“have been seri­ous­ly under­mined by a grow­ing group of judges, pros­e­cu­tors, schol­ars and oth­ers involved in crim­i­nal jus­tice, con­ser­v­a­tives and lib­er­als alike.” Read the full edi­to­r­i­al below.

(“America’s Retreat From the Death Penalty,” New York Times, edi­to­r­i­al, January 2, 2013 (print edit.)). Read DPIC’s 2012 Year End Report. Read more Editorials on the death penalty.

America’s Retreat From the Death Penalty

When the Supreme Court rein­stat­ed the death penal­ty in 1976, it said there were two social pur­pos­es for impos­ing cap­i­tal pun­ish­ment for the most egre­gious crimes: deter­rence and ret­ri­bu­tion. In recent months, these jus­ti­fi­ca­tions for a cru­el and unciv­i­lized pun­ish­ment have been seri­ous­ly under­mined by a grow­ing group of judges, pros­e­cu­tors, schol­ars and oth­ers involved in crim­i­nal jus­tice, con­ser­v­a­tives and liberals alike.

A dis­tin­guished com­mit­tee of schol­ars con­vened by the National Research Council found that there is no use­ful evi­dence to deter­mine if the death penal­ty deters seri­ous crimes. Many first-rate schol­ars have tried to prove the the­o­ry of deter­rence, but that research ​“is not infor­ma­tive about whether cap­i­tal pun­ish­ment increas­es, decreas­es, or has no effect on homi­cide rates,” the committee said.

A host of oth­er respect­ed experts have also con­clud­ed that life impris­on­ment is a far more prac­ti­cal form of ret­ri­bu­tion, because the death penal­ty process is too expen­sive, too time-con­sum­ing and unfairly applied.

The pun­ish­ment is sup­posed to be reserved for the very worst crim­i­nals, but dozens of stud­ies in state after state have shown that the process for decid­ing who should be sent to death row is arbi­trary and discriminatory.

Thanks to the Innocence Project and the over­turn­ing of 18 wrong­ful con­vic­tions of death-row inmates with DNA evi­dence and the exon­er­a­tions of 16 oth­ers charged with cap­i­tal crimes, the American pub­lic is increas­ing­ly aware that the sys­tem makes ter­ri­ble mis­takes. Since 1973, a total of 142 peo­ple have been freed from death row after being exon­er­at­ed with DNA or oth­er kinds of evidence.

All of these fac­tors have led the states to retreat from the death penal­ty in recent years — in both law and in prac­tice. In 2012, Connecticut became the fifth state in five years to abol­ish the penal­ty. Nine states exe­cut­ed inmates, the fewest in two decades. Three-fourths of the 43 exe­cu­tions in 2012 were car­ried out in only four states. The num­ber of new death sen­tences remained low at 77 — about one-third the num­ber in 2000 — with just four states account­ing for almost two-thirds of those sen­tences. While 33 states retain the death penal­ty on their books, 13 of them have not exe­cut­ed any­one for at least five years.

Those 13 states plus the 17 with­out the penal­ty means that 30 states are not car­ry­ing it out — and that includes California, which retained the death penal­ty in a November ref­er­en­dum vote. Almost one-quar­ter of the 3,146 death row inmates in the United States, as of October, are impris­oned in California, but that state has not exe­cut­ed any­one in seven years.

California’s chief jus­tice said recent­ly that the state’s offi­cial mora­to­ri­um, which has been in place for six years, is like­ly to con­tin­ue for at least three more because of prob­lems with the execution method.

In January, exe­cu­tions are sched­uled to take place in Pennsylvania, Virginia and Texas. As it hap­pens, major reviews of the death penal­ty are under way in each of those states. The reviews are very like­ly to find that those states have failed to meet stan­dards of fair­ness under the Constitution, just as reviews of the cap­i­tal sys­tems in oth­er states have con­clud­ed in the last decade.

The large num­ber of states no longer car­ry­ing out exe­cu­tions indi­cates a kind of nation­al con­sen­sus. It points to ​“the evolv­ing stan­dards of decen­cy that mark the progress of a matur­ing soci­ety,” an idea that the Supreme Court has evoked in judg­ing the con­sti­tu­tion­al­i­ty of pun­ish­ments. The court used that analy­sis most recent­ly when it ruled that manda­to­ry life sen­tences with­out pos­si­bil­i­ty of parole are uncon­sti­tu­tion­al for juve­nile offend­ers even if they are con­vict­ed of homicide.

It should sim­i­lar­ly rec­og­nize that under evolv­ing stan­dards cap­i­tal pun­ish­ment is cru­el and unusu­al and should be abolished.