Report: U.S. states carrying out death penalties in 2023 hit new 20-year low

This year marked the lowest number of states that carried out an execution and imposed new death sentences in two decades, according to a new report published Friday that analyzes the application of the death penalty across the U.S., leaving some criminal justice experts to question the value of the centuries-old practice.

“It’s down nationally, it’s down locally. It’s a small number of states who are still active,” Maria T. Kolar, an assistant professor at the Oklahoma City University School of Law who teaches criminal law and capital punishment, told Yahoo News. “It’s clear that the American appetite for the death penalty is really down.”

Overall, just five states, including Alabama (2), Florida (6), Missouri (4), Oklahoma (4) and Texas (8), were responsible for all 24 capital punishment executions this year, according to the annual report of the Death Penalty Information Center (DPIC).

Seven states — those previously mentioned plus Louisiana and North Carolina — sentenced 21 people to death, which is also the lowest number of states to do so in 20 years. The nonprofit noted that this year marked the ninth consecutive year that less than 30 people were executed and fewer than 50 people were sentenced to death as of Dec. 1.

The findings coincide with a new Gallup survey released last month that found that for the first time, more Americans now say the death penalty is applied unfairly (50%) than fairly (47%), the former representing a 5% increase since the query was last polled, in 2018.

“The data shows that most Americans have rejected the death penalty as an expensive, unfair, and ineffective public policy,” Robin M. Maher, DPIC’s executive director, told Yahoo News in an email. “These numbers show that most Americans do not believe the death penalty will make them safer or deter future crime.”

National support for the death penalty is dwindling

More than half of U.S. states, or 29, have either abolished the death penalty altogether or paused executions by executive action, according to data compiled by the DPIC. Gallup also found that just over half, or 53%, of Americans support the death penalty — the lowest number since 1972.

Many experts say the high costs of carrying out executions — which include a number of court appeals in capital punishment cases — legal challenges to execution methods and skepticism about racial discrimination in the application of the death penalty have all played a role in its shrinking appeal for states and citizens.

State capital cases, or death penalty proceedings, for instance, cost state taxpayers 3.2 times more than noncapital cases on average, according to a 2017 DPIC study of the Oklahoma death penalty. An analysis of 15 death penalty cases nationwide, from that same study, found that seeking the death penalty results in an average of approximately $700,000 more in costs than not seeking capital punishment.

“States are struggling to figure out ways to execute people and it’s part of this larger trend,” Jeff Kirchmeier, author of Imprisoned by the Past: Warren McCleskey and the American Death Penalty, a book that analyzes the history of capital punishment and race, told Yahoo News.

Still, states like Alabama are pursuing new methods of execution, as the state prepares to become the first to kill a death row inmate by nitrogen gas.

Kirchmeier, who’s also a law professor at City University of New York School of Law, challenges the purported goal of the death penalty, which he says has deep roots to lynching enslaved Black Americans and was used “as a racist mechanism.”

Through the years, experts have long pointed out the racial disparity in death penalty cases as data has shown the race of a defendant and victim’s race play a significant role. A 1990 study by the U.S. General Accounting Office, a nonpartisan government agency, found that a defendant was several times more likely to be sentenced to death if the murder victim was white.

“There’s no argument of a real benefit to having the death penalty,” Kirchmeier said. “It makes [people] feel better, but most studies show that it doesn't save lives.”

Critics also point to concerns around the accuracy of DNA evidence that could lead to fatal yet unjust outcomes. According to a 2019 annual report by the National Registry of Exonerations, somewhere between 2% and 10% of all convicted individuals in U.S. prisons are wrongfully convicted — a stat that some legal experts argue is far too high to legitimize capital punishment for anyone.

“DNA evidence has made us realize that we make more mistakes on actual innocence than we ever thought we did,” Kolar said. “When we become more appropriately humble about our ability to get guilt right [it should make us] more hesitant to seek a punishment that once it’s imposed you can’t ever take back.”

U.S. government position on death penalty

In 2019, as a then-presidential candidate, Joe Biden vowed to end the death penalty while on his campaign trail. However, four years later, advocates say he has taken too few steps to make good on that promise, though many acknowledge there is only so much he can do.

“It makes me feel like maybe he was saying what he knows people like us wanted to hear,” Rev. Sharon Risher, whose three family members were murdered by 21-year-old white supremacist Dylann Roof in the 2015 Charleston church massacre, told CNN earlier this year. “I just don’t think that he is doing what he said he would do.”

Biden’s promise on his 2020 campaign website was to “eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example,” but critics say this hasn’t come to fruition. The Department of Justice, for its part, put a moratorium on federal executions in 2021 and has not brought forth new death penalty cases, but it has backed some federal defendants in existing criminal cases. This includes arguing against an appeal for Roof and reinstating the death sentence for the Boston Marathon bomber, both of who were sentenced under former President Barack Obama.

Kirchmeier says Biden’s authority to do more on the issue is limited.

“Each state has its own separate criminal justice system and while they’re subject to the U.S. Constitution, as long as they’re not violating [it], they have a lot of leeway in how they run their system,” he said. “So the president could not force Texas to get rid of the death penalty. The only thing that the federal government could do is get rid of the federal death penalty — which very few executions are usually at the federal level that are prosecuted as death penalty cases.”

Future of death penalty in the U.S.

Despite Oklahoma having executed more people per capita than any other state since 1976, including carrying out an execution Thursday, Republicans in the state, who have historically supported capital punishment, want to pause executions until more provisions are put in place to ensure accuracy.

“There are cases right now ... that we have people on death row who don’t deserve the death penalty,” GOP Rep. Kevin McDugle, a death penalty advocate, told the Associated Press. “The process in Oklahoma is not right. Either we fix it, or we put a moratorium in place until we can fix it.”

While opponents of the practice doubt the majority-conservative U.S. Supreme Court would fully abolish the death penalty, some find satisfaction in the declining number of executions as a whole, noting that many jurisdictions want to keep capital punishment as an option on the books.

For Angie Setzer, senior attorney at the Equal Justice Initiative, a nonprofit social justice organization, the death penalty represents more of a potential threat than the people it’s attempting to do away with. Setzer called the practice “arbitrary and racially biased.”

“The decline of both death sentencing rates and execution rates reflects a general fatigue about the death penalty as a serious component to public safety,” Setzer told Yahoo News. “In the few states that continue to seek death sentences, capital punishment remains a threat to fairness and justice to people who are vulnerable and marginalized.”

Thumbnail photo illustration credit: Juanjo Gasull for Yahoo News