By Charles Lane
Monday, January 2, 2006

As 2005 gives way to 2006, the death penalty remains a major item of business on the Supreme Court's docket.

In addition to a steady flow of stay-of-execution applications, the court has four capital punishment cases to decide.

Three have been argued: Brown v. Sanders , No. 04-980, involving a technical aspect of the California death penalty law; Oregon v. Guzek , No. 04-928, on whether states must allow freshly convicted capital defendants to claim innocence at sentencing; and Kansas v. Marsh , No. 04-1170, on the constitutionality of that state's 1994 death penalty law. On Jan. 11, the court will hear House v. Bell , No. 04-8990, in which a Tennessee death row inmate claims that new DNA evidence proves he was wrongly convicted.

Yet in one important sense, this activity is misleading: The justices may be busy with death penalty cases, but capital punishment is on the wane in the United States.

It is nowhere near abolition. Judging from statistics, though, the death penalty, like Karl Marx's imagined socialist state, may be withering away.

In the year just completed, 60 convicted killers were executed. That is a drop of 39 percent from the recent peak of 98 in 1999, according to a year-end report by the nonprofit Death Penalty Information Center, which opposes capital punishment.

Perhaps more significant, death sentences are dwindling. In 2005, there were 96 new death sentences, according to the center. This is down 70 percent from 1996, when courts sentenced 320 people to die -- the largest annual number since the modern era of capital punishment began in 1976. The population of death row -- 3,383 as of Oct. 1, 2005 -- has declined by 242 since 1999.

The Supreme Court has played a role in these developments. In the late '80s and early '90s, the court seemed mainly concerned with speeding up executions, issuing several rulings that limited constitutional appeals by death row inmates.

More recently, however, the justices seem to be leaning in the opposite direction. In the past three years, the Supreme Court has abolished the death penalty for juvenile offenders and the mentally retarded, apparently to help limit the ultimate sanction to "the worst of the worst" offenders.

Attitudes about the death penalty may have grown more skeptical after recent revelations, aided by modern DNA analysis, that some innocent people have been sentenced to death. Illinois has observed a moratorium on executions since 2000, largely because of a scandal over death sentences issued to 12 people who were later exonerated. Sitting on juries, citizens aware of these problems may be less likely to impose death; local prosecutors may be less likely to ask for it.

Still, the most recent poll data show that, despite recent slippage, public sentiment in favor of capital punishment remains strong: 69 percent in the 2005 Gallup poll supported the death penalty for murder. A majority told Gallup that the death penalty is not imposed often enough. Fewer people expressed concern about wrongful executions in 2005 than in 2003.

A less-publicized, but probably significant, source of capital punishment's decline is that the number of homicides has been dropping. With fewer homicides, there are fewer occasions for states to seek the death penalty. According to the FBI, there were 24,526 homicides in 1993, but 16,137 in 2004. Statistically, this change accounts for more than half of the decline in death sentences between 1994 and 2005 (assuming a one-year lag between crime and sentencing).

The decline in homicide is not yet well understood, but social scientists point to the fading of the violent trade in crack cocaine, the hiring of thousands of additional police officers and the incarceration of large numbers of criminals for long periods as the most prominent factors.

Notably, the same Supreme Court that abolished the death penalty for the retarded and juveniles has upheld Draconian state laws that condemn some offenders to life in prison after their third conviction.

The recent decline in capital punishment is the third such period in the modern history of U.S. criminal justice. At the beginning of the 20th century, many state legislatures, influenced by new scientific notions about the origins of crime and the individual culpability of criminals, began to eliminate the death penalty. The number of executions fell from 161 in 1912 to 65 in 1919, according to "The Death Penalty: An American History," a book by UCLA law professor Stuart Banner.

But Prohibition, enacted in 1920, brought on a surge in violent crime; the death penalty made a comeback. The all-time highest annual number of executions, 199, was recorded in 1935.

A long post-World War II decline in violent crime, coupled with a more pro-defendant attitude toward criminal justice at the Supreme Court, helped reduce the number of executions to zero by 1967.

This de facto moratorium remained in place through 1972, when the Supreme Court struck down all state death penalty laws.

By that time, a new violent crime wave was underway, and the homicide rate was approaching one for every 10,000 people. Responding to public demands for a crackdown, states enacted new death penalty laws, and the Supreme Court ratified them in 1976. The stage was set for the eventual surge of death sentences and executions.

This history implies that, while the Supreme Court may shape the ebb and flow of capital punishment, the public's general fear of violent crime -- tempered by its feelings about the death penalty's fairness and reliability -- is the crucial factor. The safer streets get, the less likely the democratic process is to produce capital punishment on a large scale. But any attempt by the court to abolish the death penalty at a single stroke might not only fail, but also lead to even more capital punishment.