In February, Florida enacted a new death penalty statute that resolved the constitutional issues the U.S. Supreme Court found in 2016. Even with this reinstatement, one state’s attorney, Aramis D. Ayala, said that her office would not seek what she views as an ineffective and costly form of punishment. In November, California residents voted on two death-penalty referenda, one to repeal the death penalty and the other to facilitate more timely executions by hastening the appeal process. The Utah legislature is expected to consider this coming year both a bill that will repeal the death penalty and a bill that will force prosecutors to seek capital punishment in cases where a law enforcement officer has been murdered.[3] These developments illustrate the precarious position of the death penalty in both states’ legal codes and public opinion

The Status of Death Penalty Statutes

In 1976, after a four-year national moratorium, the Supreme Court affirmed the constitutionality of capital punishment in Gregg v. Georgia.[1] Forty-one years later, the death penalty remains a valid form of punishment in 31 states. Nineteen other jurisdictions have either legislatively abolished the death penalty or failed to reinstate it after a court has found a portion of the state’s death penalty statute unconstitutional. In four states, Colorado, Pennsylvania, Oregon, and Washington, the state’s current Governor has made the decision to no longer pursue the death penalty in any criminal prosecutions.

In Delaware, the state’s highest court recently found its death penalty statute was unconstitutional based on the US Supreme Court’s ruling in Hurst v. Florida. There, the Supreme Court ruled that Florida’s statute was unconstitutional because it did not require a jury to unanimously find each factual element necessary to support a death penalty sentence and also allowed judges to override jury decisions. Unlike Florida, however, Delaware’s legislature has not yet made any moves to resolve the issues with its death penalty statute and reinstate it. Many believe that the success of a bill to bring back the punishment would be unlikely. The state’s Senate voted to repeal the law in 2015, and the governor indicated he would sign a repeal before they put the measure on hold pending the Delaware Supreme Court’s aforementioned decision.

Alabama has a flaw similar to Delaware and Florida’s in its death penalty statute but has not made the same determination as Delaware. The state still allows judges to override a jury recommendation of a life sentence. The Alabama Supreme Court ruled in September of last year that its death penalty statute was not in violation of the Hurst ruling, and in December the state executed a man who had received a 7-5 jury recommendation of life without parole.  The US Supreme Court vacated three judgments from Alabama in 2016 and asked the state to reevaluate them in light of the ruling in Hurst. The Court of Criminal Appeals of Alabama chose to reinstate each judgment and thrice reaffirm the constitutionality of the state’s death penalty statute. The central issue in these cases is the scope of the holding in Hurst that, “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”[2] The Alabama court found that this fact finding only applied to facts that made the defendant eligible for the death penalty and not facts that might mitigate the eligibility or the weighing of these facts. [3]

Two other states, Nebraska and Montana, allow a judge to make the final decision as to whether to impose the death penalty after a jury has unanimously found at least one aggravating factor. [4] While Nebraska’s reinstated death penalty law has not been challenged since the 2016 decision in Hurst, the state’s Supreme Court could find, like Delaware’s highest court, [5] that a constitutional death penalty statute must put the responsibility for weighing the aggravating and mitigating factors in the jury’s hands. As stated earlier, Alabama’s Supreme Court has refused to recognize this interpretation of Hurst. [6]

While death penalty abolitionists have made significant progress in recent years, many of these developments are fragile. The referenda in California and Nebraska that have reinstated or strengthened death penalty law are evidence of this. Additionally, in West Virginia, where the death penalty has been abolished since 1965, a bill was introduced in February to reinstate capital punishment.[7]

The Death Penalty in Popular Opinion

According to a 2016 Pew Research poll, only 49% of adults in the U.S. favor the death penalty. This approval rating is the lowest it’s been since 1972, the same year the U.S. Supreme Court effectively suspended the use of the death penalty until its 1976 reinstatement. Researchers believe that the gradual decline in support can be attributed to the decrease in crime rates in recent years. Additionally, states that no longer use the death penalty have lower crime rates on average. How exactly murder rates and the death penalty are related is hard to say, but most experts agree the evidence suggests that the death penalty is not an effective deterrent. In fact, Aramis D. Ayala cited this failing as one reason she has chosen no longer to seek the death penalty in cases where it is legally available.

Another reason motivating politicians to remove the death penalty is the budgetary benefits. In the spring of 2015, Nebraska became the first state to abolish capital punishment since North Dakota did in 1973 when the latter’s primarily Republican legislature overrode the Governor’s veto of a bill replacing the death penalty with life without parole. One significant motivator for these fiscally conservative politicians was the huge price tag of capital punishment. Studies from numerous states have shown that successfully executing an individual is significantly more expensive than carrying out a life sentence. In Nebraska, the removal of the death penalty was projected to save around $14.6 million dollars, but in states with larger death rows, the savings are even more substantial. For instance, California, which has one of the largest death rows in the nation, could save up to $200 million dollars a year.

Not only is the death penalty falling out of popular opinion, but it also is becoming increasingly difficult to carry out. While in the past few decades, the U.S. has come to view lethal injection as the most “humane” form of capital punishment, within the U.S., other countries and many companies have refused to participate in the trade of drugs used in executions. For instance, since May 2016, no FDA-approved manufacturer of the chemicals used in lethal injections has permitted the sale of its drugs to correctional agencies. States interested in carrying out capital sentences have had to find other ways of killing death row inmates. Utah brought back the firing squad in 2015 as a secondary method of execution in the event the state cannot get access to the necessary drugs. Tennessee similarly brought back the electric chair in 2014. Oklahoma reinstated the gas chamber in 2015 but has yet to establish the protocols necessary to implement this method. State officials have, however, found an Arizona company that makes a gas chamber that “[g]uarantees the demise of mammalian life within 4 minutes.” In February, the Mississippi House of Representative passed a bill to bring back the firing squad, electric chair, and gas chamber. The Senate subsequently removed the option of a firing squad and returned the bill to the House.

In Conclusion

States seem to be moving in diametric directions on the death penalty. While some have repealed or chosen not to reinstate their death penalty statutes, others have moved toward expediting the process for executing death row inmates. The overwhelming trend, however, has been toward repeal, with 11 of 23 states abolishing the death penalty in the past fifteen years. [35] No single approach to repeal has been independently or consistently successful. Instead, opponents have used an amalgamation of methods, including convincing state executives, litigating, and lobbying legislatures. Hopefully, individuals from all sectors of the political spectrum can come together over budget-conscious and humanitarian concerns, and move progress forward at the state level in the coming years.

[1] Gregg v. Georgia, 428 U.S. 153, 187 (1976)

[2] See Hurst v. Florida, 136 S.Ct. 616, 619 (2016); Wimbley v. State, No. CR-11-0076, 2016 WL 7322334 (Al. Crim. App. Dec. 16, 2016); Rauf v State, 145 A.3d 430, 434, (Del. 2016).

[3] See Wimbley v. State, No. CR-11-0076, 2016 WL 7322334 (Al. Crim. App. Dec. 16, 2016);

[4] NE ST § 29-2521; NE ST § 29-2522;

[5] See Rauf v. State, 145 A.3d 430, 434, (Del. 2016).

[6] See Henderson v. State, No. CR-12-0043, 2017 WL 543134 (Ala. Crim. App. Feb. 10, 2017).

[7] H.R. 2390, 83d Leg. of W. Va., 1st Sess. (W. Va. 2017).