The American Bar Association’s Criminal Justice Section has released its annu­al report on issues, trends, and sig­nif­i­cant changes in America’s crim­i­nal jus­tice sys­tem. The new pub­li­ca­tion, The State of Criminal Justice 2018, includes a chap­ter by Ronald J. Tabak, chair of the Death Penalty Committee of the ABA’s Section of Civil Rights and Social Justice, describ­ing sig­nif­i­cant death penal­ty cas­es and cap­i­tal pun­ish­ment devel­op­ments over the past year. Tabak reports that 2017 had the sec­ond low­est num­ber of death sen­tences (39) imposed in the United States in four decades – trail­ing only the 31 death sen­tences imposed in 2016. Two-thirds of these death sen­tences were imposed in just five states (California, Arizona, Nevada, Texas, and Florida), with near­ly one-third of those sen­tences ema­nat­ing from just three coun­ties (Riverside, California; Clark, Nevada; and Maricopa, Arizona). Quoting Duke University Law Professor Brandon Garrett, Tabak writes that “‘jurors are increas­ing­ly reluc­tant to impose [a death sen­tence]’… where effec­tive defense coun­sel have pre­sent­ed evi­dence about defen­dants’ men­tal ill­ness, child­hood abuse, and oth­er facts that some juries – but far from all – have viewed as mit­i­gat­ing.” The chap­ter notes that local vot­ers in states includ­ing Alabama, Florida, Texas, Louisiana, and Pennsylvania have replaced pros­e­cu­tors in coun­ties known for their heavy use of the death penal­ty with new dis­trict attor­neys who are ​“far more skep­ti­cal about seek­ing death sen­tences.” Tabak also notes that the num­ber of exe­cu­tions in 2017 (23) was the sec­ond-low­est num­ber since exe­cu­tions resumed in the U.S. in the late 1970s, and four states – Texas, Arkansas, Florida, and Alabama – account­ed for 74% of all 2017 exe­cu­tions. After dis­cussing issues raised by exe­cu­tions in 2017, such as Arkansas’s rush to exe­cute eight pris­on­ers in two weeks or par­tic­u­lar­ly prob­lem­at­ic lethal injec­tions, Tabak high­lights ​“geo­graph­ic, racial, and eco­nom­ic dis­par­i­ties, and oth­er arbi­trary fac­tors, in imple­ment­ing cap­i­tal pun­ish­ment,” the grow­ing move­ment to ​“pre­clude exe­cu­tions of peo­ple with men­tal ill­ness in par­tic­u­lar sit­u­a­tions,” and oth­er major legal and leg­isla­tive devel­op­ments that may affect death penal­ty lit­i­ga­tion. Regarding the future of cap­i­tal pun­ish­ment, Tabak writes, ​“There is ever greater appre­ci­a­tion of seri­ous prob­lems with the death penalty’s imple­men­ta­tion. Increasingly, the death penal­ty in prac­tice has been attacked by peo­ple who have served in the judi­cia­ry or law enforce­ment, tak­en part in exe­cu­tions, writ­ten death penal­ty laws, or are polit­i­cal­ly con­ser­v­a­tive.” Ultimately, he con­cludes, “[O]ur soci­ety must decide whether to con­tin­ue with a penal­ty imple­ment­ed in ways that can­not sur­vive any seri­ous cost/​benefit analysis.”

(Ronald Tabak, Capital Punishment, in The State of Criminal Justice 2018, American Bar Association Criminal Justice Section, July 2018.) See Studies.

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