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Number of death sentences falls to a historic low

By Robert Barnes and Maria Glod
Washington Post Staff Writer
Friday, December 18, 2009; A06

The number of executions in the United States increased this year, but the number of new death sentences handed down fell to the lowest total since capital punishment was reinstated in 1976, according to a new report from the Death Penalty Information Center.

The trend of decreased death sentences was especially noticeable in Virginia, which is second only to Texas in the number of inmates executed. Even as the commonwealth put to death its most infamous death row inmate, Beltway sniper John Allen Muhammad, its courts were sentencing fewer murderers to death.

Virginia averaged six death sentences a year during the 1990s, according to the report by the center, which favors the abolition of capital punishment. But only one person has been sentenced to death in the commonwealth this year, according to the report, and only six others have been sent to death row in the five preceding years.

Legal experts and prosecutors in Virginia cite several factors for the decline, including Supreme Court rulings that barred the execution of juvenile offenders and the mentally retarded. They also point to a drop in violent crime, growing jury concerns about executing an innocent man, and prosecutors' concerns about the expense of pursuing a death penalty at a time of budget cuts.

"General public support for severe punishment increases when people feel less secure, and it declines when people feel more secure," said Richard J. Bonnie, a University of Virginia professor of law and psychiatry. "I have felt that people's worries about their security have been focused on terrorism rather than domestic crime."

Prince William County Commonwealth's Attorney Paul B. Ebert, who is known for his support of capital punishment, said he is seeing fewer heinous crimes. His office prosecuted four men who are currently on death row as well as two executed this year.

"The overall crime rate is dropping, and to some degree I think that's due to availability of the death penalty," Ebert said. He said most of the murders he has prosecuted recently are drug crimes or domestic killings, cases he said are less likely to result in a death sentence.

Ebert said there is also a practical reason for the decline. During a recent meeting with other prosecutors from across the state, he said several mentioned that tight budgets have discouraged them from pursuing protracted capital cases.

"They feel like they just don't have the manpower in their office to go through the long, long hearings," Ebert said.

The process ends at the Supreme Court, where the justices continue to spend a large portion of their time on death penalty appeals.

"All of these cases are going to be litigated to the hilt, and they have such a long life span that they create so many opportunities" for courts to make an error, said Douglas A. Berman, a law professor and sentencing expert at Ohio State University. "And not just error, but the kind of error that the Supreme Court has to pay attention to."

Of the nine opinions the court has handed down in the term that began in October, five concerned death penalty appeals.

In four of the cases, the court dispensed with its usual call for detailed briefings and oral arguments and summarily reversed the decisions of the lower courts. In most cases, the justices favored the prosecution.

But in one significant case, the court opened the door for military veterans to blame their crimes on post-traumatic stress disorder. Without dissent, the justices in Porter v. McCollum said a lawyer was negligent for not presenting to the jury evidence of his client's bravery during the war, even though it was 30 years after returning from Korea that he killed his former girlfriend and her new boyfriend.

This year, the court issued a rare order that a federal judge must consider the innocence claims of condemned Georgia prisoner Troy Anthony Davis, who has mounted a global campaign to declare that he was wrongfully convicted of murder and barred by federal law from presenting the evidence that would prove it.

To Berman and Elisabeth Semel, director of the death penalty clinic at the University of California at Berkeley's law school, it makes sense that the court, divided on many aspects of capital punishment, takes the chance to present a united front when it sees examples of mistakes in death penalty cases that all justices agree on.

With Justices Antonin Scalia and Clarence Thomas strongly supportive of capital punishment and Justice John Paul Stevens now taking the opinion that the system doesn't work, "both sides are very vigilant about watching for cases on the extremes," Berman said.

That is particularly true when the cases come from the U.S. Court of Appeals for the 9th Circuit, which covers the West and is often criticized as overly deferential to defendants, or the 5th and 11th circuits, which cover most of the South and receive the opposite criticism.

It is in the South that the death penalty is most often prescribed and carried out. Nearly 90 percent of the 52 executions this year took place in the region, with nearly half of those in Texas. There were only 38 executions last year, but that was because there was a de facto moratorium on the procedure until the Supreme Court ruled against a challenge to lethal injection procedures.

According to the Death Penalty Information Center's research, 106 people were sentenced to death in the United States this year, continuing a declining trend. The number of death sentences peaked at 328 in 1994.

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