The New Republic, January 7, 2008
These are heady days for anti-death penalty activists. New Jersey has taken the plunge and legislatively repealed capital punishment–becoming the first state in the modern era to do so. Today, the Court will hear arguments over whether the specific drug cocktail used in lethal injections constitutes cruel and unusual punishment by causing too much pain to the condemned. By taking up the issue, the Court has effectively frozen all executions in the nation. And no state other than Texas (a significant exception) executed more than three people last year. The news has the anti-capital punishment Death Penalty Information Center (DPIC) proclaiming the ‘execution chambers silent’ as the Garden State charts a “new direction” and declaring both actions symbolic of the “broad changes that have been occurring in the death penalty around the country.”
Curb your enthusiasm. The death penalty is, like the Iraqi insurgency, not quite yet in its death throes. While capital punishment appears on the wane right now, neither New Jersey’s action nor the temporary national freeze–particularly the latter–may mean all that much in the long run.
Don’t get me wrong. Foes of the death penalty have good reason for cheer right now. In 1999, 98 people met their ends in execution chambers across the country, the culmination of a long revitalization of capital punishment following the Supreme Court’s reinstatement of its lawfulness in 1976. Then, just as executions seemed to have become a routine part of our criminal justice system again, the numbers began a precipitous drop–to 85 executions in 2000, 59 in 2004, and 53 in 2006. In 2007, according to DPIC’s data, that number dropped even further. The 42 people put to death in 2007 represent the lowest figure in 13 years and a drop of fully 57 percent since capital punishment’s peak.
The de facto moratorium created by the Supreme Court case is a significant contributor to 2007’s sharp drop. But after the court either strikes down the current mixture or okays it, executions will resume–perhaps using a different combination of drugs–and clearing the backlog will probably immediately lead to a brief spike.
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Benjamin Wittes 