A new poll shows that, for the first time in a generation, the death penalty no longer enjoys majority support in the United States:
— Pew Research Center (@pewresearch) September 29, 2016
The sharp downward trend noted by Pew tracks other indicators showing that the death penalty is falling out of favor with a nation that once embraced it. For one thing, executions are largely limited to a handful of outlier regions. Over a third of all U.S. executions take place in just one state, Texas. And 65 percent of all new death sentences from 2004–09 were handed down in just four states.
County-level data tells an even starker tale. The same study of 2004–09 death sentences determined that only 10 percent of counties produced a death sentence, and only 1 percent of counties produced more than one.
The growing rarity of death sentences and executions has profound constitutional implications. The Constitution’s Eighth Amendment forbids “cruel and unusual punishments,” language that, by its explicit terms, places particular punishments on increasingly weak legal ground as they grow more and more “unusual.” As Chief Justice Earl Warren wrote in a case laying out the modern interpretation of this amendment, punishments must comport with “evolving standards of decency that mark the progress of a maturing society.”
The data indicate that our standards of decency are evolving away from the death penalty. That’s probably not going to matter in our current, eight justice Supreme Court — half of the Court’s current members joined a 2015 decision which treated the death penalty as if it enjoys specially protected constitutional status. Nevertheless, if the Court’s current vacancy is filled by a justice who thinks differently, there could soon be a majority to significantly roll back executions.