Report: Belief death penalty is applied unfairly shows capital punishment's growing isolation in US

HOUSTON– More Americans now believe that the death penalty, which has been declining in use and support for years, is being applied unfairly, a finding that contributes to growing isolation in the U.S., an annual death penalty report shows.

But whether declining public support for the death penalty and declining numbers of executions and death sentences will ultimately result in the abolition of the death penalty in the U.S. remains uncertain, experts say.

“There are some scholars who are optimistic that the death penalty will soon be completely eradicated,” said Eric Berger, a law professor at the University of Nebraska-Lincoln. “I think it's more likely that the death penalty will continue to decline. But I think it's less likely to disappear completely in the near future.”

There have been 24 executions in the US in 2023, with the last of the year taking place on Thursday in Oklahoma. Additionally, 21 people were sentenced to death in 2023, marking the ninth consecutive year in which fewer than 30 people were executed and fewer than 50 people received the death penalty, according to a report from the Washington DC-based Death Penalty Information Center.

Only five states – Texas, Florida, Missouri, Oklahoma and Alabama – carried out executions this year. That was the lowest number in two decades, said Robin M. Maher, executive director of the nonprofit center, which does not take a position on the death penalty but has criticized the way states carry out executions.

“That shows that the death penalty in the United States is once again becoming increasingly isolated in its use,” Maher said.

An October Gallup poll found that 50% of Americans think the death penalty is applied unfairly, compared to 47% who think it is applied fairly, Maher said. This was the highest number since Gallup first began asking about the fairness of the death penalty in 2000.

Catherine Grosso, a professor at Michigan State University's College of Law, said the Gallup poll result could partly have to do with more young people and others questioning the U.S. criminal justice system after the killing of George Floyd in 2020 by a police officer.

Nearly 200 death row exonerations since 1975, including three in 2023, have also helped change people's minds about the fairness of the death penalty, Maher said.

In recent years, several individuals across the country, including conservative lawmakers, have expressed concerns about the death penalty or debated its future, Grosso said.

But in some states, including Alabama, Florida, Oklahoma and Texas, the death penalty remains entrenched, Berger said.

Earlier this year, Florida Governor Ron DeSantis signed bills creating two new death penalty laws. The death penalty is allowed for child rape convictions, despite a U.S. Supreme Court ruling banning the death penalty in such cases. The other law ends the unanimous jury requirement when imposing the death penalty.

“If you commit a crime that is truly heinous, you should receive the ultimate punishment,” DeSantis said in May, commenting on the death penalty for child rape convictions.

States' continued difficulties in securing supplies of execution drugs have prompted some states to explore new and untested execution methods or revive previously abandoned execution methods, the center's report said.

Alabama has set a January execution date for what would be the nation's first attempt to execute a prisoner with nitrogen gas. In July, Idaho became the fifth state to allow executions by firing squad. The last time an American prisoner was executed by firing squad was in 2010.

According to the center's report, a majority of states, 29, have abolished the death penalty or suspended executions.

Corinna Lain, a professor at the University of Richmond School of Law in Virginia, said she thinks the number of states without the death penalty could easily reach 40. But a nationwide ban would require action by the U.S. Supreme Court.

Lain and other experts say that's unlikely because recent actions show the Supreme Court won't stand in the way of states carrying out executions. According to the Centre's report, the Supreme Court has granted only one stay of execution out of 34 such petitions filed since the 2022-2023 term.

Texas, the nation's busiest capital punishment state, has not been immune from the ongoing death penalty debate.

Earlier this year, the Republican Party-led Texas House passed a bill that would abolish the death penalty in cases involving someone diagnosed with schizophrenia. The bill ultimately failed because it was never passed by the Texas Senate.

Republican Party Rep. Jeff Leach said in March that the bill was not part of a covert effort to abolish the death penalty in Texas.

“I believe we need the death penalty in Texas,” Leach said. “But as a death penalty advocate, I am against executing people who had serious mental illness at the time they committed the crime.”

Even in Texas, there could be some change regarding the death penalty, Berger said.

“But you don't see the kind of change where you would expect them to just say, 'Ah, we're completely done with the death penalty.' At least not yet,” says Berger.

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