Probing Question: Is the death penalty on the decline in America?

In November, the Commonwealth of Virginia executed John A. Muhammad, the infamous “D.C. sniper” responsible for 10 murders seven years earlier. On the eve of his execution, a Washington Post poll found 66 percent of Virginians supporting the death penalty and 31 percent opposed. Though still high, these numbers represent a drop in support for capital punishment in the state of Virginia from four years ago, when 72 percent of likely voters said they favored the policy. Despite this recent high-profile case, 2008 saw the fewest executions in the state since 1999.

Does this mean the death penalty is on the decline in America?

Yes, said Suzanna Linn, professor of political science at Penn State.

“Although a majority still supports the death penalty in the abstract,” Linn said, “fewer and fewer defendants are being sentenced to death both because prosecutors are less likely to seek the death penalty and juries are less likely to mete out a death sentence.”

A growing number of high-profile death-row exonerations have further undercut public confidence, Linn said (135 Americans have been released from death row upon re-examination of their cases). Investigative feature stories, such as the recent article in The New Yorker magazine, "Trial by Fire: Did Texas execute an innocent man?", are likely to focus on a defendant’s struggle to obtain justice within an often dysfunctional legal system.

This is a new development in the United States, said. Linn. Capital punishment has a long history in the United States: colonial governments brought the idea from their mother countries. In 1976, the modern era of the death penalty began in this country, with a series of Supreme Court decisions clarifying its constitutionality and setting clear guidelines for its application. In modern times, Linn explained, public support increased through the 1990s, peaking at about 80 percent of Americans. However, since the mid-90s that number has decreased dramatically. So, too, has the number of executions per year, from a height of 98 in 1999 to 37 in 2008.

Linn, along with colleagues Frank Baumgartner and Amber E. Boydstun, authored the recent book "The Decline of the Death Penalty and the Discovery of Innocence." In it, she argues that the decline is predicated by a shift in how Americans talk about the death penalty. While a majority still finds capital punishment morally defensible, the debate has shifted toward whether it can be enforced fairly, with no chance of executing an innocent person.

“The 'innocence frame' is one way to look at the death penalty debate,” she said. “It is composed of arguments that the system is broken, that a human-run system cannot avoid making mistakes and that the defendant sometimes has been denied sufficient access to evidence like DNA.”

This way of framing the debate puts the emphasis on judicial practice rather than on moral abstractions, she said, and has gradually eroded support for the death penalty.

The American Bar Association (ABA) has entered the debate by conducting a three-year study on state death penalty systems.

"After carefully studying the way states across the spectrum handle executions," wrote Stephen F. Hanlon, chair of the ABA Death Penalty Moratorium Implementation Project, "it has become crystal clear that the process is deeply flawed. The death penalty system is rife with irregularity, supporting the need for a moratorium until states can ensure fairness and accuracy.”

Although 35 states still have death penalty statutes, some states already have declared moratoria on executions, Linn said, and the Supreme Court has found the death penalty unconstitutional for the mentally handicapped and for juvenile offenders. Linn sees this trend away from capital punishment continuing as more people adopt the innocence frame.

“The argument that a system run by bureaucrats will make mistakes doesn't challenge the deep-seated moral position in favor of the death penalty,” she said. “Regardless how one feels morally, no one wants to execute innocent people.”