Death penalty rift in states continues

Gov. Bill Richardson’s decision Wednesday (March 18) to repeal New Mexico’s death penalty and replace it with a maximum sentence of life without parole is being hailed by supporters as a major victory in the decades-old debate over state-sanctioned executions.

But the decision—which follows New Jersey’s repeal in 2007 and brings to 15 the number of states that do not execute inmates—also underscores the nuanced modern landscape of capital punishment.

While a growing number of states are seriously considering eliminating the death penalty—whether for moral, fiscal or political reasons—others are trying to reinstate or expand it. At the same time, the United States is on track to put more inmates to death this year than in any year since 1999.

Recent political developments have highlighted the complex and highly regional approaches to the death penalty:

State senators in Montana will hold a key committee hearing March 25 to consider joining New Jersey and New Mexico as the only states to repeal the death penalty legislatively (rather than through court action) since the U.S. Supreme Court reinstated it in 1976. Montana’s House of Representatives already has approved the bill, and Gov. Brian Schweitzer (D)—who, like Richardson, has backed capital punishment in the past—has said he is keeping an open mind and may sign it.

In Maryland, state lawmakers are working on a compromise that could sharply limit when prosecutors can seek the death penalty. Gov. Martin O’Malley (D), an outspoken critic of capital punishment, had sought an outright repeal this year.
In a handful of other states, including Colorado, Kansas, Nebraska and New Hampshire, repeal legislation has been seriously considered this year, with proponents gaining new traction by arguing that costs of the death penalty are too high for financially strapped states.

Elsewhere, supporters of capital punishment are mounting their own campaigns:

In Alaska, which abolished the death penalty in 1957, Gov. Sarah Palin (R), the speaker of the state House of Representatives and others are pushing to re-establish it.

In Georgia, some state lawmakers are trying to allow death sentences to be imposed on defendants even if juries do not unanimously agree. The action comes after a quadruple murderer recently was spared from the death penalty because three of 12 jurors did not agree to the ultimate punishment.

In Nebraska, where the state Supreme Court struck down the electric chair as unconstitutional last year, Gov. Dave Heineman (R) and others have pushed back against repeal efforts and instead are promoting legislation that would establish lethal injection as the state’s method of execution and allow death sentences to be carried out again.

In Virginia, the General Assembly has sent Gov. Tim Kaine (D) a bill that would expand capital punishment, including by allowing the state to execute those who assist in a murder but do not personally carry it out. Kaine, however, opposes the death penalty and has vetoed a similar measure in the past.

Perhaps most significant in the short-term picture of capital punishment is that the United States is on track to execute some 80 inmates this year—the most in a decade.

Twenty inmates already have been executed through the first three months of 2009, including 12 in Texas, according to the Death Penalty Information Center, which opposes capital punishment. Seven other Southern states—Alabama, Florida, Georgia, Oklahoma, South Carolina, Tennessee and Virginia—also have carried out death sentences this year.

The spate of executions reflects what experts have characterized as a temporary uptick in the death penalty after the U.S. Supreme Court’s decision last year upholding lethal injection procedures used in Kentucky. All executions nationwide were put on hold while the high court considered the case; as a result, 37 inmates were put to death nationally in 2008, the fewest since 1994.

“I think what we’re experiencing is the post-lethal injection surge that was bound to come,” said Richard Dieter, executive director of the Death Penalty Information Center. Dieter noted that death sentences nationally have declined from about 300 annually in the mid-1990s to about 100 last year, and he said he expects use of the death penalty to decline over the long term.

While the present-day picture of capital punishment differs sharply from state to state—and from year to year—experts on both sides of the debate say New Mexico’s repeal highlights a growing divide between the states that use the death penalty and the states that don’t.

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif., noted that the states in which repeal legislation has gained the most traction in recent years—or where it has passed—rarely execute prisoners in the first place.

New Mexico, for instance, has only two inmates on death row, and the state has not executed anyone since 2001. (In an unusual twist, Richardson said during a press conference last night that he will not commute the sentences of the state’s two death-row inmates. The decision potentially sets the stage for a future execution in a non-death penalty state.)

In New Jersey, Gov. Jon Corzine (D) repealed a death penalty the state had never used, and only eight inmates were on death row.

In Kansas, Maryland, Montana, Nebraska and New Hampshire, where death-penalty repeal legislation has been seriously debated this year, a combined 29 inmates sit on death row.

In contrast, Scheidegger said, “I don’t see any serious chance of repeal in those states that are actually using the death penalty.”

Texas is by far the national leader in executions in the modern era of capital punishment, according to the Death Penalty Information Center. The Lone Star State has executed 435 prisoners since 1976; it is followed by Virginia, Oklahoma, Missouri and Florida.

Contact John Gramlich at jgramlich@stateline.org.