What the high court’s marriage decision means for the death penalty

The Supreme Court’s recent 5-4 decision to allow the continued use of midazolam in lethal injections may offer less insight about the future of capital punishment in America than the Court’s historic decision to allow same-sex couples to marry. While the Court’s decision in Glossip is confined to the very narrow issue of whether midazolam causes an undue risk of pain during execution, their decision on the freedom to marry illuminates how a changing national consensus can compel the Court to reevaluate its position on an issue that seemed intractable not so long ago.

Before the Court’s ruling on marriage, 37 states and District of Columbia protected the freedom to marry. Eight states and D.C. had legislative victories, three states saw victories at the ballot box, and many more had legal wins in the courts. The campaign for marriage equality faced numerous setbacks, but the direction of change had been moving strongly in one direction, and most of the progress occurred in the last 10 years. Massachusetts became the first state to protect the freedom to marry in 2004. Since that time, public support for marriage equality has increased steadily and now hovers around 55 percent.

{mosads}The movement to end the death penalty has followed a similar trajectory as a national consensus against the practice has emerged and a majority of states have abandoned it in law or in practice. Today, 19 states and the District of Columbia legally bar the use of the death penalty–seven have done so in the past eight years. The Nebraska legislature, led by conservatives, ended the death penalty last month. Last year, the number of annual new death sentences reached a 40 year low, while executions–carried out in just seven states–reached a 20 year low.

Public support of the death penalty has also been declining since the late 1990s. The numbers vary depending on how you ask the question, but a 2014 Washington Post ABC poll found that 52 percent of Americans preferred a sentence of life without parole for persons convicted of murder, while only 42 percent chose the death penalty.

In May of last year, while deciding a death penalty case related to intellectual disability, Justice Kennedy counted Oregon as being “on the abolitionist side of the ledger,” because it had “suspended the death penalty and executed only two individuals in the past 40 years,” even though it still has the law on the books.

In his opinion in Hall v. Florida, Justice Kennedy considered both past and prospective disuse of the death penalty in determining how Oregon should be counted–demonstrating that usage, along with legislative and legal victories, matters when determining whether a consensus exists.

This is significant because Oregon is not unique in this regard.

In addition to the 19 states that currently prohibit the death penalty,11 states and the federal and military governments exhibit a degree of long-term disuse–having imposed just one or fewer executions per decade over the past half-century.

New Hampshire has not performed an execution in 86 years. Kansas, as the Hall Court noted, “has not had an execution in almost five decades.” No person has made it past direct appeal in Kansas. The same is true for Wyoming, which currently has no one on its death row and has performed only one execution in 50 years. Colorado has executed just three people in the last 52 years. Gov. John Hickenlooper (D), who was re-elected in 2014, has asserted that no one will be executed during his tenure.

Idaho, Kentucky, Montana, Pennsylvania, South Dakota and the federal government have performed just three executions each over the past 50 years, while Oregon has performed just two. The military government hasn’t had an execution in over 50 years.

In 2014, Washington State Gov. Jay Inslee (D) declared a moratorium on executions. That state has carried out only five executions in the last 50 years. Pennsylvania’s newly elected governor, Tom Wolf, also indicated that he will block executions from occurring during his term.

In addition to a long-term pattern of disuse, six of these 11 states haven’t performed an execution in more than a decade–meaning there is no recent usage either. Another four states are likely to reach the 10 year mark with no executions by mid-2016, including California. In fact, only 2 percent of the counties in the U.S. have been responsible for the majority of cases leading to executions since 1976.

A variety of factors are likely driving the decline in death penalty usage. A series of very high-profile death row exonerations have contributed to Americans’ growing skepticism about the accuracy of the criminal justice system. Half a dozen studies showing how much the death penalty costs in comparison to life imprisonment have also contributed to discontentment, especially among conservatives. A number of botched executions, the unwillingness of drug manufacturers to provide the lethal drugs needed for executions, and growing opposition from the medical and pharmaceutical sectors have also created obstacles to carrying out executions.

While some of these issues may have simply created temporary delays which could be alleviated by Glossip, it is unlikely that usage will return to the levels seen in the late 1990s–given all of the other factors that have contributed to the decline.   

If these trends continue as expected, it won’t be long before 34 states, plus the District of Columbia, and the federal and military governments, can be–to borrow a phrase from Justice Kennedy– counted on the “abolitionist side of the ledger.” This comes remarkably close to the 37 states that demonstrated a strong and growing consensus in support of the freedom to marry.

The Court should take another look at the constitutionality of the death penalty, as Justices Breyer and Ginsburg suggest in their Glossip dissent. If they follow the same path they took with marriage, and take note of the growing national consensus against capital punishment, the death penalty’s demise may soon be on the horizon.

Hill is a capital defense attorney and the director of the 8th Amendment Project, which is working to end the death penalty nationwide.