This year, Wyoming’s only death row prisoner had his death sentence overturned.  Now, instead of being executed, Dale Wayne Eaton will likely die in prison from old age--a fate not dissimilar to that of many death row prisoners across the country.    

The death penalty is dying a slow, costly death in the United States--fading into the history books--as Americans grow increasingly skeptical of its value.    

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For the first time in recent history, a majority of U.S. states have abandoned the death penalty in law or in practice. Not only have six states legally abandoned the death penalty in the last decade -- bringing the total number of states that have officially dumped the death penalty to 18 -- eight states have essentially abandoned the death penalty in practice by sending no one to the execution chamber or by adding no new prisoners to death row over the last 10 years. In these twenty-six states, along with the District of Columbia, the death penalty simply isn’t being used in any meaningful way. 

What's more, even if you look at the traditional bastions of capital punishment, Texas and the deep South, you’ll find that death sentences and executions have been steadily declining for years now. This year, Texas will have carried out only 10 executions--the lowest number since 1996.   

Death Penalty Information Center’s year-end report, released last week, reveals that Texas is simply part of a national trend: 2014 saw the lowest number of executions carried out in the United States in the last 20 years, and the fewest new death sentences in 40 years. In fact, only seven states carried out executions in 2014. 

Even in those few places that enforce capital punishment with some regularity, it is largely reserved for those without the ability or funds to obtain a qualified lawyer, and for those who suffer from severe mental illness or other forms of functional deficits, causing many to question punishment’s usefulness and legitimacy. Just look at the overwhelming opposition to the scheduled execution of Scott Panetti, a severely mentally ill man on Texas’ death row who was set to be executed on December 3rd until his execution was stayed by the 5th Circuit. Evangelical leaders and stalwart conservatives, including former Virginia Attorney General Ken Cuccinelli and Baptist minister Pat Robertson, came out of the woodwork to condemn the execution.   

Americans’ growing ambivalence towards the death penalty may also be driven in part by a lingering concerns over the wrongful conviction of innocent men and women, like Wiley Bridgeman and Ricky Jackson who spent 39 years in prison--and at one time faced execution--for a murder they didn’t commit. Both men were released in November after the sole eyewitness in their case, a 12-year-old boy, recanted. Their co-defendant, Kwame Ajamu, who served 28 years in prison, had all charges against him dropped two weeks ago. Ajamu’s exoneration brings the total number of death row exonerations nationwide to 150.

Recent studies about the high cost of the death penalty, such as the one released by the state of Nevada this month, are also contributing to this growing skepticism. The Nevada study found that death penalty cases cost almost double that of non-death penalty cases due to the dual-trial process, constitutionally-mandated appeals, and increased incarceration costs. Not only that, of the 153 people sentenced to death in Nevada since 1977, only one “non-volunteer” execution has been carried out, making this cost estimate extremely conservative. 

From a legal perspective, the less the death penalty is used, the more indefensible its use becomes. The Supreme Court has said that for a law to be Constitutional, it must be applied regularly and consistently. In this context, this means a state must not only possess a valid death penalty statute, but it must regularly impose death sentences and routinely perform executions. This just isn’t happening. 

It is only a matter of time before the Supreme Court recognizes that a consensus against executing prisoners has already emerged, and that a majority of states have embraced the death penalty’s slow demise.
 
Smith is an assistant professor of law at the University of North Carolina at Chapel Hill where he teaches and writes about criminal law and evidence. Smith previously served as the legal and policy advisor to Harvard Law School's Charles Hamilton Houston Institute for Race and Justice (CHHIRJ), where he was responsible for the Institute's litigation efforts. Before joining the CHHIRJ, Smith represented death-sentenced inmates as a staff attorney at the Louisiana Capital Appeals Project.