America Had Fewer Executions In 2017 Than In 23 Of The Last 25 Years

Midday on Tuesday, November 28, the Texas Court of Criminal appeals stayedthe execution of Juan Castillo, who was convicted and sentenced to death as the trigger-man in a 2003 robbery-murder on a San Antonio lovers’ lane. At Castillo’s trial, another inmate testified that Castillo had confessed his role in the crime. That wasn’t true; in what has become a familiar scenario, the inmate recently signed an affidavit declaring that that he made the confession up to curry favor with the State in his own case. The stay was significant for another reason: Castillo was the last American inmate scheduled for a 2017 execution. Every execution concludes a distinct story worth telling, but the end-of-year statistics generate a blaring headline: execution activity continues to fall off a cliff, and is concentrating in a small cohort of capitally-active jurisdictions.

America’s execution activity is dwindling. There were twenty-three executions in 2017. To put that in perspective, there were ninety-eight executions in 1999. Those numbers are not outliers; they are representative of the execution activity during each of the two eras. Execution activity between 1999 and 2001 was well over triple what it was between 2015 and 2017 (eighty-three to twenty-four). Execution activity bottomed out in 2016, when American jurisdictions only executed twenty people. Texas, the most active death penalty jurisdiction in the country, executed thirty-five people in 1999. In 2017, it executed seven, the lowest number since 1996. One might be inclined towards an obvious explanation — American jurisdictions are sentencing fewer people to death, so they are executing fewer of them. That theory, however, fails to account for the fact that death rows are crowded enough to keep the execution chambers quite busy without a new supply of death-sentenced inmates, even in jurisdictions experiencing a slowdown.

That slowdown has to do with a few other things. First, there’s growing judicial acceptance of science about wrongful convictions. Whereas previous generations of judges were conditioned to think of lengthy post-conviction litigation almost exclusively as a means of stalling, there is growing awareness that — particularly in death cases — there may be serious innocence-related errors capable of being corrected. “Death qualified” juries pruned of community members having philosophical objections to executions tended over-credit eyewitness testimony, shoddy forensic evidence, and incentivized-witness accounts. That change in judicial attitudes corresponds with what seems to be a change in the practices of State’s Attorneys, who are relatively more willing to accede to proceedings involving new evidence.

Second, even when capital sentences are lawful, problems with execution method seem to be throttling the execution rate. California has America’s largest death row but hasn’t executed anyone since 2006 because it lacks a lawful lethal injection protocol. As drug manufacturers have moved to prevent their products from being used in executions, a number of American jurisdictions have struggled to obtain an alternative supply. As a result, states seeking to execute inmates are being forced to litigate things like the acceptability of different lethal injection sequences, the use of lethal injection drugs from questionable foreign sources or compounding pharmacies, the use of lethal injection drugs nearing or past an expiration date, the availability of specialists necessary to deliver the drugs without causing excessive pain and suffering, the acceptability of abrupt changes in execution protocol, and the secrecy sometimes used to conceal attributes of the process. One need look no further than Arkansas to see just how spooked states are about lethal injection litigation — it tried to execute eight people in eight days because its batch of midazolam was about to expire.

Third, there’s lots of discussion about how expensive securing a death verdict is, and that’s true. The less-discussed truth is that executing the condemned also costs a small fortune. The number of constitutional challenges available to death row inmates is greater than what is available to those convicted of noncapital crimes, and they usually get superior post-conviction representation. Every state except for Alabama requires the appointment of post-conviction counsel in capital cases, and 18 U.S.C. § 3599 guarantees legal representation, including two lawyers, to capital inmates in federal proceedings. The State can no longer assume its ability to steamroll an in-over-his-head insurance lawyer working his first capital case. If it wants to execute someone, then it’s going to have to pay to do it. And if the entity that decides whether to move forward with executions is closely affiliated with the entity that bears the cost of the litigation, rising costs should reduce execution activity.

The data discloses a national decline in execution activity, but it also shows substantial geographic concentration. This year, there were eight states that had executions. A little over thirty percent of those executions were in Texas, actually down somewhat from the historical average of thirty-seven percent. (The Texas number partially reflects the fact that Harris County, America’s execution juggernaut, elected a new District Attorney that expressly campaigned on restrained use of the death penalty.) Between 1996 and 2000, American executions occurred in twenty-eight states and represented death sentences from 200 counties. Between 2011 and 2015, the figures dropped to fourteen states and 104 counties. In short, the geographic footprint of American execution activity is half of what it was just twenty years ago.

One might look at the shrinking execution footprint and just conclude that the shrinkage is entirely attributable to states that stop executing people. Nope. Even within tried-and-true retentionist jurisdictions, fewer and fewer counties are responsible for executions. Take the five jurisdictions that have imposed the most death sentences in the last twenty years. Fifty-seven Texas counties sentenced inmates executed between 1996 and 2000; that figure fell to twenty-seven in the period between 2011 and 2015. The story is the same in Oklahoma (fourteen to nine), Virginia (twenty-seven to three), and Missouri (fourteen to ten). Only Florida bucks the trend (ten to fourteen).

Others, including Justice Breyer, Robert J. Smith, and Brandon L. Garrett, have documented, explained, and evaluated the concentration of death sentences. The causes of concentrating sentencing and execution activity, however, are distinct. I’ve devoted considerable energy to teasing out the differences. Certain localities produce disproportionate execution activity because the practice resides in what I call their “local muscle memory.” Speaking quite generally, a jurisdiction’s muscle memory is the correlated exercise of discretion by multiple local stakeholders, which is heavily influenced by the locality’s history of capital punishment practice. In other words, inertia matters — but more on that in a moment.

There is another, even more basic driver of concentration: money. The counties largely responsible for the executions in concentrating states are large and urban — i.e., they have big budgets. As the per-inmate cost of execution increases, so does the budgetary hit. Rural counties that would have to pay for the litigation necessary to execute an inmate are simply getting priced out of the execution market. The geographic distribution of Florida executions would seem superficially inconsistent with that hypothesis, but there is a wrinkle. In Florida, the county has no role in deciding whether to go ahead with the execution of a death-sentenced inmate. Unlike in Texas — where the District Attorney in the sentencing county must move for an execution date — in Florida, the Governor decides.

Moreover, it is precisely these large jurisdictions that are already the most proficient at the death penalty; they are the ones with the superior institutional muscle memory. The State’s Attorneys in these counties reside near the top of a steep learning curve that requires them, among other things, to secure execution dates, to defend against eleventh-hour collateral litigation in state and federal court, and to support the state attorney general and prison warden. The State’s Attorney offices in these counties are also the offices most capable of transmitting institutional knowledge from one generation of prosecutors to the next. What Professor David Dow said of Texas is equally true of virtually any capitally active county: “[It] executes so many people because it executes so many people. . . . [K]illing people is like most anything else; the more you do it, the better you get. If killing people were like playing the violin, [it] would have been selling out Carnegie Hall years ago.”