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The last execution scheduled for this year is set to take place tomorrow in Georgia. Polls show 60 percent of Americans still approve of the death penalty. And the U.S. Supreme Court has upheld the death penalty as constitutional. But capital punishment is actually growing rare in America. The number of executions continues to decline. And this morning and later today on All Things Considered, NPR's Nina Totenberg looks at why this is happening.
NINA TOTENBERG, BYLINE: This year in the United States, lightning strikes will kill about the same number of people as executions - lightning strikes, 26, versus 27 executions so far. It's an ironic statistic. When the Supreme Court briefly banned the death penalty in 1972, it did so in part because, as Justice Potter Stewart put it, capital punishment was being opposed so randomly and freakishly that it was like being struck by lightning. Four years later, the court would revive the death penalty but with new limitations aimed at reserving it for the so-called worst of the worst. Back then, few could have imagined the death penalty's trajectory, which soared in the 1990s, hitting a high of 98 executions in 1999 and totaling more than 1,400, then tailing off dramatically. This year's 27 executions is the fewest in almost 25 years. The death penalty remains the law in 31 states, but that figure is misleading. In many of these 31, the death penalty has largely fallen into disuse. In four of them, the governor has put a moratorium on capital punishment. And in 17, there's an executive or judicial hold on executions because of botched procedures or problems in obtaining drugs the courts have approved for lethal injection. Those who deal with the death penalty regularly, whether opponents or supporters, acknowledge the trend. So why is this happening? Columbia law professor and death penalty researcher, James Liebman.
JAMES LIEBMAN: From the 1970s to the '90s, I think the nation essentially ceded all of its concerns about the death penalty's reliability to the Supreme Court, which seemed to be fully on the case.
TOTENBERG: But, he says by the early 2000s, public perception began to change.
LIEBMAN: People began to realize that the Supreme Court couldn't keep the death penalty reliable. Dozens of innocent people were released from death row. And lots of people started putting the brakes on executions. And that was jurors, prosecutors, governors. We've even seen doctors and pharmacists who are refusing to take part in executions.
TOTENBERG: Indeed, some prominent defenders of the death penalty have changed their minds. Conservative Republican Mark Earley, who, as attorney general of Virginia from 1998 to 2001, presided over the execution of 36 men, now opposes capital punishment.
MARK EARLEY: We've had so many exonerations over the last 10 to 15 years - over 150. We can't have a system where there's a question about putting someone to death who may be innocent or who later has been shown to be innocent or clearly didn't receive a fair trial. Conceptually, I can still make an argument why we should have a death penalty for certain crimes. But my concern, being involved in the criminal justice system throughout my whole life, is, you know, we get it wrong sometimes. And in the death penalty cases, we just can't get it wrong.
TOTENBERG: George Kendall, who's litigated death cases for more than 40 years, says it's not just the 156 death row inmates who've been exonerated, and it's not just the advent of DNA. It's the nature of the cases that have disintegrated on further examination.
GEORGE KENDALL: We're not talking about a universe of cases where there was maybe one detective working the case on Friday afternoon. We're talking about the cases that were the largest priority in the office. And that's what has really shaken people, the cases that really look as solid as they can be. You know, fast forward 20 years, some new technology comes around, and, my God, we made a horrible mistake.
TOTENBERG: Judge Alex Kozinski, of the 9th Circuit Court of Appeals with jurisdiction over West Coast states, says he still thinks that the death penalty can be fairly and equitably imposed. But, he adds...
ALEX KOZINSKI: There are so many contradictions in our death penalty jurisprudence that I think it's going to be very difficult to find a way back. They put in so many controls and conditions that it's very hard to administer it without a lot of expense, a lot of delay and a lot of missteps.
TOTENBERG: Indeed, that seems to have been the view of the conservative legislature in Nebraska, which earlier this year voted to abolish the death penalty. But if executions have dwindled, the number of prisoners waiting on death row has continued to grow because of the long-term backlog. There are now some 3,000 men and women who've been convicted and sentenced to die. Many were sentenced decades ago, since appeals, on average, now take almost 17 years. At the front end though, fewer juries are handing down death sentences, in part because fewer prosecutors are seeking them. Death penalty defense lawyer George Kendall says only a few localities are still enthusiastic about capital punishment.
KENDALL: It's down to counties. Two percent of the counties in this country produce the majority of the death sentences.
TOTENBERG: Things have changed even in Texas, he says.
KENDALL: There are only a handful of prosecutors that use the death penalty in Texas any longer. A great majority of the prosecutors in this country have never used the death penalty and never are going to. When you look back for the last 20 years, there's been this enormous shrinkage of the use and withdrawal of using it all over the country, even in the South.
TOTENBERG: Governor Asa Hutchinson of Arkansas has set eight execution dates since becoming governor this year, but all have been stayed for now by the state's Supreme Court. Hutchinson is committed to the death penalty as an important, if rare, punishment. And he cites the Boston Marathon bombing as the kind of crime deserving the ultimate punishment.
ASA HUTCHINSON: We're a nation of laws. And our legislature authorizes the death penalty in certain prescribed cases that are very specific with aggravating circumstances. And I think the average citizens recognize that there's some crimes that cross the boundaries of a civilized society, and that recourse is appropriate.
TOTENBERG: Tonight we'll take a look at death penalty delays and the attempt to make capital punishment more humane through lethal injection. Nina Totenberg. NPR News, Washington.
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