On the surface, 2015 was a terrible year for death penalty opponents. Despite a series of botched executions, during which inmates were essentially tortured inmates due to unreliable drugs used in the execution process, the Supreme Court rejected an attempt to place safeguards on these state-sponsored killings to ensure that they do not leave the inmate in agony. In the process, the Court gave states broad immunity to lawsuits claiming that their execution protocols are too cruel to continue.
Even as the Court’s conservative majority placed the death penalty on a legal pedestal, however, its actual use has withered. As a new report by the Death Penalty Information Center (DPIC) explains, only six states performed executions in 2015, killing a total of 28 people. That’s down more than 70 percent from 1999, when annual executions peaked at 98.
This drop in executions might be explained by uncertainty hanging over whether the Supreme Court would declare many executions unconstitutional in Glossip v. Gross, the decision that ultimately bolstered the penalty’s legal status. But the number of death row inmates killed by the states did not simply decline in 2015 — so did the number of people added to death row. According to the DPIC report, “there were 49 death sentences in 2015, 33% below the modern death penalty low set last year.”
This report built on other data showing that the death penalty is in decline and is generally only used by a small number of jurisdictions. More than one-third of all U.S. executions take place in a single state, Texas. A study of death sentences from 2004-2009 determined that only 10 percent of counties within the United States produced a single death sentence, and only 1 percent of counties produced more than one such sentence. The death penalty, in other words, has become the province of outlier jurisdictions and is never meted out in the bulk of the nation.
As the death penalty grows more and more uncommon, that has profound constitutional implications. The Eighth Amendment forbids “cruel and unusual punishments,” or, as Chief Justice Earl Warren once explained, it prohibits punishments that cannot be squared with “evolving standards of decency that mark the progress of a maturing society.” Our standards are evolving, and they are rapidly evolving away from the increasingly unusual practice of executions.
For the moment, it’s unlikely that our increasing refusal to execute people will move a majority of the Supreme Court. Justice Samuel Alito’s majority opinion in Glossip effectively gave the death penalty super-legal status. “Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional,” he wrote, adding that “‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’”
Alito, in other words, started with the premise that the death penalty is constitutional, then worked backwards to conclude that there must be a way to carry it out — even when the method on the table may lead to people being tortured to death. That’s not an easy approach to square with the Constitution’s text. And it’s unlikely that a justice who would sign onto this reasoning would also sign onto an opinion striking down the death penalty in its entirety.
The times could be changing very soon at the Supreme Court, however. As many as four justices could retire in the next president’s first term. If that president is not inclined to put more Alitos on the Supreme Court, the death penalty could be declared cruel and unusual.