The Court and Capital Punishment on Different Paths: Abolition in Waiting

The American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states  without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for  the past six years, compared to an average of seventy-seven a year  during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past six years – compared to highs of over three hundred per year in the mid-1990s.  The last two years have seen only eighteen death sentences per year nationwide – fewer than two per capital jurisdiction.  This article examines the dynamics underlying this great decline of the American death penalty and assesses the likelihood of its continued diminution. At the same time capital punishment  is withering in practice, the prospects for constitutional abolition  via judicial decree have also decreased substantially, as the U.S.  Supreme Court has shown marked hostility toward constitutional regulation of the death penalty. This new hostility replaces a jurisprudence that was increasingly hospitable to extensive  regulation – even judicial abolition – of American capital  punishment. The Court’s recent decisions threaten to jettison the jurisprudential commitment to “evolving standards of decency” as  the touchstone for interpreting the Eighth Amendment in favor of a more limited originalist approach to gauging “cruel and unusual”  punishments. The Court also appears eager to discourage end-stage litigation and to remove obstacles to both state and federal  executions. The simultaneous decline of public support for the death penalty and judicial regulation of the death penalty has produced  “abolition in waiting” – a marginalized practice that will remain  on the books until changes in the composition of the Court permit  reassessment of the death penalty’s constitutionality.