U.S. Cuts Back on Executions as It Debates Lethal Injections

November, 1, 2007

By Greg Stohr, Bloomberg

The U.S. Supreme Court fight over lethal injections, a dispute that has halted executions nationwide, is highlighting a decade-long trend away from capital punishment.

The justices will consider whether lethal injections create an unnecessary risk of suffering. The case might force as many 37 states to change the way they execute people, adding more pressure to a death penalty system already experiencing a slowdown.

Executions in the U.S. have declined almost every year since 1999, when 98 convicted murderers were put to death. This year 42 executions took place, all by lethal injection, according to the Washington-based Death Penalty Information Center. The U.S. and Japan are the only major industrialized nations with capital punishment.

``We seem to be realizing that there really are serious concerns about the death penalty in this country,'' said Deborah Denno, an expert on the subject who teaches at Fordham University Law School in New York. ``It's not just the whimperings of some liberals who are trying to devise ways to get the death penalty made unconstitutional.''

Almost 1,100 people have been executed in the U.S. since the Supreme Court reinstated the death penalty in 1976, four years after saying it was being applied unconstitutionally. The 98 executions in 1999 were the most since 1951. Fifty-three people were put to death last year.

The decline is due in part to concern that innocent people may be facing execution. Since 1973, 124 people on death row have been exonerated, many with the help of newly available DNA evidence.

Tainted Evidence

In the most recent example, an Oklahoma judge in May released Curtis McCarty, who had served 21 years in jail for murder, after concluding that an Oklahoma City police chemist had tainted the evidence against him.

Concerns about innocence have made jurors less willing to impose death sentences, says Richard Dieter, executive director of the Death Penalty Information Center. Prosecutors, in turn, are seeking the penalty less frequently.

The number of death sentences imposed dropped to 128 in 2005 from 317 in 1996, according to statistics compiled by the U.S. Bureau of Justice Statistics, an arm of the Justice Department.

``It's innocence that has caused a ripple effect throughout the death penalty system,'' Dieter said. His organization, while not advocating abolition of the death penalty, is critical of the way it is applied.

Better legal representation has also played a role, according to Dieter. The New York-based Innocence Project alone says it has helped secure 208 exonerations in both capital and non-capital cases since being established in 1992.

Fewer Eligible

In addition, the Supreme Court has restricted the pool of people eligible for the death penalty. The justices in 2002 declared executions of mentally retarded people unconstitutional. Three years later, the court barred executions of people younger than 18 at the time of their crimes, saying they ``cannot with reliability be classified among the worst offenders.''

The latest Supreme Court case, which involves the three- drug lethal injection method used by Kentucky and dozens of other states, has effectively placed a moratorium on executions until the justices rule, probably in May or June.

The court this week stayed the death sentence of a Mississippi man who didn't object to the lethal-injection method until less than a month before his scheduled execution. The justices previously blocked executions in Texas and Virginia.

An August Execution?

The moratorium probably will end soon after the court rules, even if the justices outlaw the three-drug method. Denno and other experts say states could come up with a new method in short order. Douglas Berman, a law professor at Ohio State University who writes a blog on sentencing, predicts the next execution will take place in August 2008.

``This is a blip,'' said Robert Blecker, a professor who specializes in the death penalty at New York Law School. A ruling banning the three-drug protocol ``can be easily remedied.''

Still, the lethal injection case is focusing attention on what critics say is the unseemly reality of the death penalty. All but one of the 38 death penalty states use lethal injections -- Nebraska, which hasn't conducted an execution since 1977, still authorizes electrocution -- and almost all of those use the same three chemicals.

Inmates are first injected with sodium pentothal, an anesthetic, followed by pancuronium bromide, which causes the lungs to shut down and paralyzes the body. The final chemical, potassium chloride, then induces a fatal heart attack.

Agonizing Deaths

The high court will hear arguments from two Kentucky inmates who say lethal injections have led to agonizing deaths for some prisoners. The appeal points to botched executions in Florida and Ohio. The inmates also point to a 2005 study, published in the medical journal Lancet, that said in 21 of 49 executions the prisoner endured a feeling of suffocation and a burning sensation through the veins, followed by a heart attack.

The case is ``another problem for the death penalty, another straw on the camel's back that may eventually cause it to be abandoned, not out of moral revulsion but simply out of a frustration,'' Dieter said.

Whether the trend will lead to abolition is far from clear. Blecker, an advocate of the death penalty for especially egregious offenses, says he doubts that will happen.

``I don't see the master trend away from the death penalty; I see a master trend toward more careful consideration,'' he said. ``The people are in favor of it because, when you get right down to it, some people deserve to die.''

The case is Baze v. Rees, 07-5439