America’s attachment to the death penalty is well-rooted but there are significant signs that US courts, politicians and public opinion may be turning against capital punishment.
On Friday, the US Supreme Court agreed to set a new standard for when a death row prisoner is too mentally ill to be executed without violating the constitution. On Monday, the justices will consider whether to force attorneys representing death row prisoners to take extraordinary measures to persuade juries to spare their lives. And next week the court will hear three cases that could have a significant impact on the imposition of the death penalty in Texas – the heartland of capital punishment – where nearly half of last year’s executions took place.
The Supreme Court’s scrutiny of the practice comes against a background of growing public unease about the way prisoners are executed in many states, and the possibility that some might be innocent. A nationwide Gallup poll last year showed a big drop in public support for the death penalty. It showed Americans divided over the best punishment for murder – death or a life sentence without parole – after many years in which capital punishment was strongly preferred.
Executions last year fell to their lowest level in a decade and, in the past few weeks, several states have temporarily halted the practice. Jeb Bush, the outgoing Florida governor, suspended the death penalty in that state after a botched execution underlined widespread fears about the cruelty of lethal injection, the most common execution procedure.
Shortly afterwards, a federal court ruled that California’s lethal injection procedures violated the rules against cruel and unusual punishment in the US constitution – though the judge in that case left open the possibility that California could comply with the constitution by changing its procedures.
Last week, a legislative commission in New Jersey recommended that the state abolish the death penalty, after it found “no compelling evidence” that capital punishment served a legitimate purpose, and increasing evidence that it “is inconsistent with evolving standards of decency”.
Death penalty opponents say there are several reasons for this trend, including publicity about DNA testing that has exonerated some prisoners and recent Supreme Court decisions that improve legal representation for capital defendants.
In recent years, America’s top court has been chipping away at the edifice of the death penalty. It has declared unconstitutional the execution of mentally impaired defendants and those who committed murder before the age of 18.
On Monday the court will consider the duty of defence attorneys to find mitigating evidence that could persuade a jury to spare a capital defendant’s life.
The case before them involves a death row prisoner who refused to let his lawyer present testimony from his mother and ex-wife to mitigate his sentence. Now he is claiming that his lawyer did not do his job because he did not advise him of other ways that he could improve his case – without the testimony of his relatives. The justices must decide how much to require of defence attorneys in such circumstances: must they ferret out mitigating evidence, even when the defendant appears not to want them to do so?
And later this term, the court must decide how severe a defendant’s mental illness must be to spare him a death sentence. They agreed on Friday to rule whether the execution of a schizophrenic death row prisoner in Texas would breach his constitutional rights given that he seems unable to appreciate why he has been sentenced to death.