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The death penalty on life support

After decades of executions, the U.S. is growing queasy about capital punishment.

January 01, 2008|Vince Beiser | Vince Beiser is a California-based writer who often writes on criminal justice issues.

The media are abuzz over the 40th anniversary of 1968, the year that saw so much change in this country. But one of the most extraordinary of those changes has been almost completely forgotten: 1968 was the first year in the history of the United States that not a single prisoner was executed. Today, we're getting closer than we have in decades to matching that milestone.

Forty years ago, the death penalty was dying off. With the injustices highlighted by the civil rights movement prominent in the public consciousness, polls found that more Americans opposed capital punishment than supported it. Several states had banned the practice starting in the early 1960s, and prominent leaders, from then-presidential candidate Robert Kennedy to local politicians, were denouncing it. Even the U.S. attorney general at that time, the nation's top law enforcement official, called for its abolition. In a 1968 ruling, a Supreme Court justice dismissed death penalty advocates as a "distinct and dwindling minority." That year, the number of annual executions, which had been slipping into the single digits, hit zero. Finally, in 1972, the Supreme Court effectively banned executions.

But just a few years later, the nation began an astonishing about-face. The Supreme Court reopened the door to capital punishment in 1976, launching an era in which the U.S. didn't just bring back the death penalty, it feverishly embraced it. By the 1990s, a record majority of Americans favored capital punishment. Opposing it had become political suicide for any major candidate. Courts were handing down hundreds of death sentences every year, and dozens of new crimes were being made capital offenses in state after state. By the start of the new millennium, thousands of men and women were languishing on death row, and the number of executions shot up to nearly 100 a year.

What happened? By the mid-1970s, much of middle America was deeply uneasy about how the very fabric of society seemed to be unraveling. Drug use and crime were rising; minorities, women and homosexuals were demanding more power and respect. And the mighty United States was humiliated, first in Vietnam and later by Iranian hostage-takers.

In this milieu, politicians increasingly learned that crime could pay -- for them. From federal candidates to county sheriffs, would-be officeholders began vying to out-tough each other on law-and-order issues. One result was the extension of the death penalty to dozens of new crimes, along with cutbacks on appeals and other protections for capital defendants.

Today, however, the nation is again losing its enthusiasm for capital punishment. Executions nationwide are effectively on hold until the U.S. Supreme Court takes up a case later this month on whether lethal injection is unconstitutionally inhumane. If the court rules that it is, states can, of course, find some other way to end convicts' lives. But Americans are increasingly queasy about doing so, no matter how it's done.

Although about two-thirds of all Americans still support capital punishment in principle, that number is considerably lower than what it was just five years ago. In practice, we're ever more reluctant to impose it. That's largely because of the more than 100 men and women who have been freed from death row in recent years, thanks to DNA testing and other advances. That shocking proof of the system's fallibility also has made juries, judges, prosecutors and politicians much more wary about pushing for the ultimate punishment. In 1996, courts handed down 317 death sentences; last year, that number plummeted to 110, according to the Death Penalty Information Center. And in December, New Jersey became the first state in 40 years to abolish its death penalty. At least two other states are considering doing likewise.

According to Amnesty International, 133 countries have abolished the death penalty. Last month, the United Nations voted for a worldwide moratorium on capital punishment.

As far back as the 1960s, almost every industrialized nation had abandoned the death penalty as a barbaric and pointless anachronism. The U.S. in 1968 was on track to do the same -- not because the Supreme Court forced it on us, but because we as a nation had decided it was a bad idea. Support for the death penalty hasn't always been a fact of American life. That's something worth remembering in this new year.

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