Why state executions are dropping

For the first time since the death penalty was reinstated a quarter century ago, the number of executions has fallen for two consecutive years.

The news is being taken in stride by death-penalty supporters, who say the downward trend simply reflects the often uneven flow of cases through the criminal-justice system.

But for those who want to abolish society's ultimate punishment, it's an endorsement of the country's willingness to find alternatives to execution - and the slow but steady progress toward its outlawing altogether.

When Texas last week put its final inmate to death for the year, the national count stood at 66 executions in 2001. That's down 22 percent from last year, when there were 85 executions. That was a 13 percent drop from '99.

"It's significant because there have been other drops, but never two years in a row," says Richard Dieter, executive director of the Death Penalty Information Center in Washington. "There seems to be great reticence about carrying out the death penalty now because of all we know about the mistakes that have been made."

Public support for the death penalty has softened in the last decade, dipping in polls from from 80 percent to 65 percent today. That number did edge up after Sept. 11, however.

While the nation's attention has been focused on other issues since the terrorist attacks, many opponents still think state and local lawmakers will return to the debate over capital punishment - especially if more death-row inmates are exonerated. Five were freed this year with the help of DNA, for a total of 98 since 1973.

Some states, as a result, have been backing off their virtually unequivocal stance on capital punishment. Five states this year passed legislation banning the execution of the mentally retarded, 17 states enacted laws that provided greater access to DNA testing, and 18 states introduced bills to place a moratorium on executions, though none passed.

In addition, juries are sentencing people to death at a much lower rate than in previous years. And studies show that they want to have the option of imprisoning people for life instead of giving them the death penalty.

"I think it's a combination of a public that has become better educated about the issue of the death penalty and increasingly concerned about the flaws in the system," says Rick Halperin, president of the Texas Coalition to Abolish the Death Penalty.

More high-profile public figures are expressing concern about about mistakes in capital cases as well. In two speeches this year, US Supreme Court Justice Sandra Day O'Connor said she has "serious questions" about whether the death penalty is being administered fairly.

But death-penalty supporters say all of this doesn't amount to a substantial change in public opinion about capital punishment. The drop in executions nationwide simply reflects the fall in crime rates, which have come down sharply since the late 1980s, says Joshua Marquis, an Oregon district attorney.

That affects the number of people being sentenced to death, as well as the number of executions. Further, he says, prosecutors have become more savvy about which cases they think they can get a capital conviction on.

"There's been a massive assault on the death penalty in the last five or six years, with some success," says Mr. Marquis. "But it's not really that significant."

Supporters point to some notable exceptions to the overall drop in executions: New Mexico, Tennessee, and the federal government, for instance, killed their first inmates since the death penalty was reinstated in 1976.

Capital-punishment supporters also note that the dropoff in executions the past two years was probably inevitable because there was such a spike in 1998 and '99. The numbers jumped those years in part because of federal legislation, passed in 1996, that sped up the appeals process.

States, too, took steps to move cases more quickly through the system as death-row populations rose dramatically. Texas, for instance, passed a law that combined two post-conviction court proceedings and immediately provided death-row inmates with representation.

That cut the average appeals time in half. Over a four-year period, Texas executed 102 inmates and last year set a record, with 40 executions. This year, however, it killed seven people. "I think 40 for last year was fairly unique," says Jim Marcus of the Texas Defender Service, which handles post-conviction death-penalty cases. "Seventeen is probably more representative of what our average should be."

Even if the numbers do return to "normal," Texas - of all places - is seeing at least some softening on the death penalty. For instance, this session the legislature passed bills that mandate DNA testing for most capital defendants, improve representation for indigent defendants, including those charged with capital murder, and outlaw the execution of the mentally retarded (though Gov. Rick Perry vetoed that bill).

In addition, the Texas Court of Criminal Appeals stayed the execution of three death-row inmates, a rare move. All of this surprises many Texans, who were getting used to having the busiest death chamber in the country. Its neighbor to the north now has that distinction. Oklahoma has killed 18 people this year.

Even with all the executions there, the death penalty was the source of considerable debate. A major scandal in Oklahoma erupted when a former police chemist was accused of misrepresenting her testimony in two decades of criminal cases.

DNA analysis of Joyce Gilchrist's cases has already freed one death-row inmate, overturned another death sentence, and questioned the evidence used to convict a man who was executed last year. Hundreds of other cases are still under review. Ms. Gilchrist says she is innocent.

Critics hope these type of cases will cause more Americans to rethink the death penalty. "At the moment, more people are concerned about problems with the death penalty rather than the morality of it," says Mr. Halperin.