To understand what may be coming, let’s take the ideas of cruelty and rarity one at a time.
Last year, a pair of executions – one in Arizona and one in Oklahoma – drew national attention after witness accounts and death records indicated that the men put to death died slowly and painfully, after 40 minutes or more. The cases ignited a national debate about what had once been a matter of almost unquestioned orthodoxy: lethal injection offered states a humane way to carry out death sentences for egregious crimes.
Now, several European drug makers have refused to sell drugs in the United States central to many state’s lethal injection protocols, citing ethical concerns about the way the drugs will be used. In March, Utah implemented a law that made death by firing squad legal once again.
That decision has produced more than a few late-night talk show jokes. But those jokes are reaching an audience of Americans some legal observers say is increasingly convinced that DNA evidence must be available to prove irrefutable guilt or innocence in every case — the so-called CSI effect. The American public appears, then, to be at least nominally aware of some of the now-just over 150 cases in which prisoners have been proven innocent and freed from death row. In the most recent such instance, an Alabama man was freed after 30 years on death row.
And disturbing but pervasive patterns in who is actually sentenced to die – most often black and poor defendants convicted of killing white victims – have been illuminated by multiple studies and are nearly impossible to refute.
All of that spurred, as NAACP Field Organizer Redditt Hudson told me, “organic shifts” in public opinion around the death penalty.
A Quinnipac poll released recently indicates that Hudson is right. Forty-eight percent of Americans said that a person convicted of murder should be sentenced to life in prison without parole, while just 43 percent expressed support for the death penalty in such a circumstance. Support for capital punishment is strongest among Republicans and men. But a majority of Americans, 58 percent, do support the death penalty for those involved in deadly incidents of terrorism.
Officially, the NAACP, the nation’s largest and oldest civil rights organization, described the agency as engaged in the broader strategy of “building momentum towards banning the death penalty nationwide.”
The Iowa/Nebraska NAACP State Conference, a collection of NAACP chapters in those states, got deeply involved as the Nebraska legislature considered repeal. NAACP members armed lawmakers with key facts as the debate between those inclined to repeal capital punishment and those determined it remain took shape. In Missouri, NAACP State Conference President Mary Ratliff announced in January that death penalty repeal will rank among that group’s top priorities this year.
And that plan brings us to the matter of the unusual part of the death penalty abolitionists’ case.
Niaz Kasravi, former criminal justice director at the NAACP and current deputy director of the Anti-Recidivism Coalition (ARC), which does not do anti-death penalty work, points out that the United States is part of a limited and not exactly ideal league when it comes to state-directed executions.
“America keeps company with countries such as Iran, Iraq, North Korea, Saudi Arabia and Somalia — many of which we constantly criticize for human rights violations,” she told me.
Even inside the United States, the death penalty has become increasingly rare.
Beyond the headlines created by the Nebraska repeal, the actual number of both death penalty sentences and executions has declined sharply. In 1998, courts in states around the country handed down 295 death sentences, an all-time high. Last year, that figure dropped to 73. And in 1999, actual executions peaked at 98. Last year, states put 35 people to death. And many states where the death penalty is legal have not executed anyone for more than a decade.
In fact, 80 percent of the 35 executions carried out last year took place in just three states: Texas, Florida and Missouri. Oklahoma, Georgia, Arizona and Ohio executed the rest, said James Clark, senior death penalty campaigner for Amnesty International USA.
That alone would help to bolster any case brought on the grounds that capital punishment is cruel and unusual, according to Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty. If the same crime is punishable by death in one state but not in another, that's the definition of capricious, cruel and unusual punishment, she said.
All of that would likely be a part of any Eighth Amendment claims – the constitutional measure barring cruel and unusual punishment – made before the Supreme Court, if and when the count of states which bar the death penalty reaches 26.
Right now, including Nebraska, that figure sits at 19.