After watching a man die in the electric chair, and after interviewing family members of the people he killed and after absorbing the process I had just been a part of, I reached clarity. I embraced my support for the death penalty and have never looked back. It struck me that I had seen precisely the proper consequence for the crimes committed, and the relief and satisfaction I saw from those families underscored the moral foundation of capital punishment.
Now I live in Texas, which has been noteworthy for a death penalty so efficient that, as the dark joke goes, you can see the line move on death row. But this is not your father’s Texas death penalty. The two years of this decade have seen six executions in Huntsville (headquarters of the state’s Department of Criminal Justice). Compare that with 166 from 1990 to 1999, and 248 from 2000 to 2009. Business is no longer booming.
Texas mirrors the nation in that regard. The 1990s saw 478 American executions, followed by 590 the decade following. That was a jump from roughly 48 per year to almost 60 per year. The average since 2016 is about 20.
What’s the reason for this decline? States have been slowly abolishing the death penalty; only eight did not have it in 1970, while 23 do not today. Add three governors who have imposed moratoriums, and executions are legal in a minority of states for the first time in our history.
But in addition to legal change, certain factors emerging over the last decade have slowed the execution process, even in southern and western states where the death penalty remains popular. Are we seeing the gradual extinction of the death penalty? If so, is that a good or bad thing? Or are we mired in an era of complications and problems that simply need to be fixed before we can return to confidence in reliable legal mechanisms and consequences?
Opponents of the death penalty have based much of their argument on the likelihood of executing an innocent person. It can be argued that one case is too many, and even the staunchest death penalty supporters wish to be certain of guilt. In a human system, it is impossible to believe that we have always been right. Death rows across America are filled with inmates for whom guilt is a certainty. But groups like the Innocence Project have successfully used modern DNA technology to exonerate almost 400 convicts—21 of whom were awaiting execution.
Juries convict routinely on a basis of proof beyond a reasonable doubt. If a mistake is made, someone can be released from prison. Since execution is forever, perhaps we can raise the bar to a certainty of guilt beyond even the shadow of a doubt, reserving life imprisonment for those cases that fall short.
Opponents also assert that the death penalty is applied in a racially biased manner. The Death Penalty Information Center points to a 35 percent figure for black death sentences, nearly three times the percentage of the population that is African American. But the higher death penalty rate reflects a higher crime rate among minorities, and these inequalities are likely more economic than racial.
Another barrier to execution efficiency involves the favored method of lethal injection. Around 2011, European manufacturers began banning the export of key drugs used in the lethal mix. American companies have shown wavering enthusiasm in picking up the slack. A spate of botched injections in 2014 sparked unsettling news stories and a flurry of legal challenges to the method long considered the most humane.
As lethal injection supply chains falter, states are expanding their range of options. As the electric chair loses acceptability, South Carolina, which provides for inmates to choose their method, has reauthorized firing squads. If that bristles with even greater old-school harshness, consider the view of Fordham law professor Deborah Denno, who can understand why states are going “back in time” to avoid the uncertainties of lethal injection. The trained marksmen of a firing squad, she says, are a better bet for a swift end than prison volunteers administering a dicey drug cocktail. “We don’t know if the person is going to be skilled in lethal injection in the way police or military are trained to shoot to kill.”
As a society, we have a lot to think about. If voters no longer believe in the moral and legal correctness of capital punishment, they are free to vote it out in their states. But the moral underpinning of the death penalty—established in the Bible (and never revoked by Jesus, despite critics’ claims) and lasting through the ages to deliver the ultimate punishment for the ultimate crime—has no expiration date.
Every effort should be made to address the doubts, concerns and nuts-and-bolts practicalities of the way executions are performed. Any decision to keep or do away with the symmetrical justice of the death penalty should be based on the merits of the practice itself, unclouded by complications that should be fixable.
Mark Davis is a talk show host for the Salem Media Group on 660AM The Answer in Dallas-Ft. Worth, and a columnist for the Dallas Morning News and Townhall.
The views expressed in this article are the writer’s own.
