An essay, Why Death Penalty Opponents Are Closer to Their Goal Than They Realize, by HLS Professor Carol Steiker ’86 and her brother, Professor Jordan Steiker ’88 of the University of Texas School of Law, appeared in the Sept. 27 edition of The New Republic. The essay focuses on the decline of the death penalty in practice, politics and law, and how the present moment brings the genuine possibility of permanent abolition via judicial decision.

The Steikers, both well-known for their criminal law scholarship, published a study in 2009 which led the American Law Institute (ALI) to vote to withdraw the capital punishment section of its Model Penal Code. The study, which was requested by the ALI, examined the effectiveness of the Model Penal Code’s death penalty provisions, which were enacted in 1962 and were designed to make the administration of the death penalty less arbitrary. The Model Penal Code provisions were cited by the U.S. Supreme Court in 1976 when it determined that the death penalty could be administered in a constitutional way.

Carol Steiker is the Henry J. Friendly Professor of Law. Her primary interest is the broad field of criminal justice, with a special focus on issues related to capital punishment. Professor Steiker served on the Board of Editors of the Encyclopedia of Crime and Justice (2nd ed. Macmillan, 2002), is the editor of Criminal Procedure Stories (Foundation 2006), and is co-author of the Kadish, Schulhofer & Steiker casebook, Criminal Law and Its Processes (8th ed. Aspen 2007).

Why Death Penalty Opponents Are Closer to Their Goal Than They Realize

By Carol S. Steiker and Jordan M. Steiker

Georgia’s execution of Troy Davis last week was a poignant reminder of the continued presence of capital punishment in the United States. The Davis execution generated extraordinary interest because of troubling doubts about his guilt. Some observers have already speculated that the Davis case might serve as the spark that could reignite the movement to abolish the death penalty. But lost in some of the attention that the execution has generated is the death penalty’s unmistakable and precipitous decline over the past decade. If the battle has not been won by death penalty opponents, they are much closer to their goal than they realize.

Death sentencing has dropped remarkably over the past fifteen years, making what was already a marginal practice (in terms of the frequency with which murder is actually punished with death) an exceptionally rare one. Whereas over 300 defendants were condemned to die per year in the mid-1990s, the most recent figures show a nationwide average closer to 115 per year—a more than 60 percent decline. Executions, too, have fallen significantly—by about 33 percent if one compares 1997-2003 (about 75 executions nationwide per year) and 2004-2010 (about 50 executions nationwide per year).

As a matter of politics, the momentum is clearly on the side of restriction rather than expansion. The past four years have seen the legislative abolition of capital punishment in New Jersey, New Mexico, and Illinois. Numerous other states have come close to abolition or have adopted new limitations on the death penalty (such as Maryland’s requirement that death sentences rest on biological evidence or on a videotaped recording of either the offense or a confession by the offender). As a matter of law, the death penalty appears more fragile jurisprudentially than at any other time in American history, save the brief period of judicial invalidation in the early 1970s.

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