The Price of a Penalty

Support for death sentences is waning across the country.

Death penalty opponents hold a sign outside the governor's mansion in Oklahoma City on Thursday, Jan. 9, 2014, protesting the McAlester, Okla., execution of Michael Lee Wilson. Prison spokesman Jerry Massie said Wilson's time of death was 6:06 p.m.

Death penalty opponents hold a sign outside the governor's mansion in Oklahoma City Jan. 9, protesting the McAlester, Okla., execution of Michael Lee Wilson.

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If there was ever a human argument for the death penalty, Clayton Lockett was it. The Oklahoma man was found guilty of shooting a 19-year-old woman with a sawed-off shotgun, then watching while two others buried her alive. Lockett, in a taped confession, blithely smoked a cigarette as he explained his victim could not be counted on to keep quiet about his breaking into a home and kidnapping several people. “I could hear her breathing and crying and everything,” Lockett said in the video.

The details of the crime were horrifying. The details of Lockett’s execution were also shocking. Before witnesses, prison officials began the three-drug cocktail that was supposed to sedate Lockett and then stop his breathing. It didn’t work. He writhed in pain. Unsedated, as an official said Lockett was, the condemned man would have been in excruciating pain, feeling that his body was being burned. A vein blew, and before officials could get the drug sequence to work, Lockett had a massive heart attack. It had taken him more than 40 minutes to die. Once a poster boy for advocates of capital punishment, Lockett, in his death, achieved the opposite, forcing a nation to ask itself whether the death penalty was worth practicing anymore.

In the past half-dozen years, six states have gotten rid of the death penalty (Connecticut, Maryland, Illinois, New Mexico and New Jersey did it by statute, while a court did it in New York) and other states’ governors have put moratoria on executions. New Hampshire came within one vote last month of abolishing its death penalty. A majority of the American public – 60 percent – supports capital punishment, according to Gallup, but that number is a dramatic drop from the 80 percent support the death penalty got in 1994 and the lowest it has been in more than 40 years.

There is still a determined group, among the public and elected officials, who see capital punishment as the only proper fate for those who commit heinous crimes. Texas Gov. Rick Perry, for example, defended his state’s death penalty record, telling “Meet the Press” that “in Texas, our citizens have decided that if you kill our children, or kill our police officers, for those very heinous crimes the appropriate punishment is the death penalty.” But that sentiment is increasingly limited to certain pockets of the country, experts say, with the majority of pro-death penalty advocates holding less vehement views.

[VIEWS YOU CAN USE: Botched Oklahoma Execution Raises Death Penalty Questions]

“My sense is that support is very broad for the death penalty, but quite shallow,” says Frank Baumgartner, a political science professor at the University of North Carolina at Chapel Hill and co-author of the book “The Decline of the Death Penalty and the Discovery of Innocence.” With crime, especially homicides, declining, jurors are also backing off from sending defendants to their deaths, he says. “If you ask somebody, what do you think about the death penalty, people say, if you commit the ultimate crime, you get the ultimate punishment. But when people sit in a jury, and they have that power in their own hands, they’re reluctant,” Baumgartner notes.

Politicians, too, are retreating on the issue. While it’s unusual for a candidate to campaign on an anti-capital punishment platform, contenders for political office aren’t making a big deal of it anymore. When running in a highly competitive Democratic presidential primary in 1992, then Gov. Bill Clinton made a dramatic trip back to Arkansas to see to the execution of Ricky Ray Rector, who had been convicted of killing a police officer. Rector was mentally impaired. The defense said he was not mentally competent to stand trial. Before he was executed, Rector was given a traditional last meal, and set aside half a piece of pecan pie to eat later, he said. But while Clinton’s move has since come under fire, at the time it was seen as a wise political decision by a Democrat eager to be seen as tough on crime and supportive of the law enforcement community.

Fast-forward to 2014 and President Obama has ordered a Justice Department review of the death penalty in the wake of the Lockett debacle. Conservative Ohio Gov. John Kasich, a potential candidate for president, recently commuted the death sentence of Arthur Tyler to life without parole, saying there were “troubling” inconsistencies in the court proceedings. Arizona Gov. Jan Brewer, meanwhile, vetoed legislation last month that would have expanded the state’s death penalty. And even states that have a death sentence tend not to go through with it very often. In California, for example, 741 people sit on death row, but the Golden State – which executed more than 700 people before 1976 – has put to death just 13 since that year.

[REPORT: U.S. Executions Dipped in 2013]

Is this the result of a moral epiphany on the part of the U.S. public and its elected officials? Have the arguments made by religious and other groups – that it’s wrong for anyone to take a life – finally won out? No, experts say. The trend reflects an awareness of practical issues tied to the death penalty: the cases of condemned inmates later determined to be innocent, uncertainty about whether the punishment deters crime, and the sheer cost to cash-strapped counties of prosecuting and defending such cases.

“I think the public is becoming more skeptical, more questioning of the death penalty – not on moral grounds, but on efficacy, public policy,” says Richard Dieter, executive director of the Death Penalty Information Center. Pharmaceutical companies are reluctant to get involved in developing lethal injections – they’re just not profitable, he notes. And while Lockett’s crime is stomach-churning, the botched execution has people asking if the punishment is worth the human and financial cost, Dieter says.

Elizabeth Smith, a professor and death penalty expert at the University of South Dakota, says she can trace the public’s move away from capital punishment to the development of DNA analysis. As more people realized that guilty verdicts can be wrong and that innocent people are spending years on death row, “it gives juries pause,” she says. And given the money spent on both prosecution and security for death row inmates, “the death penalty turns out to be one of the least cost-effective things they can do,” she says.

The actual execution of death penalties is now primarily concentrated in just a handful of states (Texas, Oklahoma, Virginia and Florida) and even more precisely a handful of counties, Dieter says. That – not the philosophical question of capital punishment – is what might someday cause the courts to rule for repeal on the basis of capricious and uneven punishment, legal experts say. “What you’ll probably see in the next 10 years or so [is] retrenchment, where it starts to look like a Southern phenomenon,” notes John Blume, a professor at Cornell University Law School. “If we reach the point where [the] only states actively using it are the former slave states, maybe that’s where the Supreme Court steps back into the process,” Blume says.