Fewer Americans now support the death penalty than at any point in 40 years, according to a new Gallup poll. But the level of support still remains at 60 percent, with just over half of Americans — 52 percent — believing that the death penalty is applied fairly.
By Gallup’s count, the last time support for the death penalty was lower was in 1972, at 57 percent. 1972 was also the year when the U.S. Supreme Court imposed a moratorium on the death penalty, finding in a series of concurring opinions that its imposition at the time was “pregnant with discrimination” and cruel and unusual. Even then, the court noted that the punishment was decreasingly accepted by contemporary society — a factor in its determination that it is unusual. “There has been a steady decline in the infliction of this punishment in every decade since the 1930′s,” Justice Brennan wrote. He added, “When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied.”
In fact, a recent study found that, since the U.S. Supreme Court lifted that moratorium in 1976, the majority of executions have been performed in just 2 percent of U.S. counties. And six states have abolished the penalty in as many years. In 2012, only 80 people were executed nationwide.
All of this lends even more weight to the argument that the punishment is increasingly “unusual” as defined by the Eighth Amendment’s cruel and unusual standard. But it may also explain why half of Americans still think the punishment is imposed fairly. With so many states and counties eliminating the punishment, many simply have little exposure to those cases in which shoddy evidence or discriminatory decision-making lead to arbitrary sentencing.