The Death Penalty Information Center’s annual report on capital punishment in the United States reveals a striking trend. Few American states are handing down death sentences, and even fewer actually executed anyone in 2018.
In total, just 25 people were executed in the United States in 2018, and 42 people received death sentences. Only eight states conducted executions — Alabama, Arkansas, Florida, Georgia, Nebraska, South Dakota, Tennessee, and Texas — and Texas accounted for more than half (13) of the 25 executions nationwide.
2018 was the fourth year in a row with fewer than 30 executions.
This dramatic drop in the use of capital punishment, along with the fact that executions are increasingly limited to a handful of outlier states, should have profound constitutional implications.
The Eighth Amendment forbids “cruel and unusual punishments,” or, as Chief Justice Earl Warren explained, it prohibits punishments that defy “evolving standards of decency that mark the progress of a maturing society.”
Thus, as a particular punishment becomes more “unusual,” it becomes increasingly constitutionally suspect. America’s standards are evolving. And as this new report shows, they are evolving away from state-sponsored killings.
Unfortunately for the rule of law, it is unlikely that the Supreme Court will acknowledge this constitutional development. The Court’s last major death penalty decision was its 2015 opinion in Glossip v. Gross, a bloodthirsty 5-4 opinion by Justice Samuel Alito which held that the death penalty enjoys special constitutional status.
Faced with empirical evidence that the method of lethal injection used by several states is so painful as to amount to torture, Alito mocked the argument that death row inmates should be saved from such unnecessary pain.
“While most humans wish to die a painless death, many do not have that good fortune,” the archconservative justice wrote. “Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
Indeed, if anything, it is likely that the Supreme Court will grow even more tolerant of state-sponsored killing now that Justice Anthony Kennedy’s seat is occupied by the staunchly conservative judge Brett Kavanaugh. Although Kennedy was largely unsympathetic to arguments that particular methods of execution were needlessly cruel, he often voted with the Court’s liberals in cases arguing that certain individuals cannot be executed.
Thus Kennedy joined majority opinions holding that the intellectually disabled and juvenile offenders may not be executed.
With Kennedy gone, however, it is likely that there are no longer five votes on the Supreme Court that agree with these two decisions. States like Texas, in other words, may soon gain the ability to execute people who committed crimes as children.