45 Pages Posted: 15 Jun 2006
Recently, several contradictory developments have appeared concerning the death penalty. On the one hand, some indicators suggest that the death penalty is on the wane. Annual death sentences, for instance, have dropped 60% from a post-Furman high in 1996, and the public is increasingly skeptical that the death penalty is being fairly applied (one recent poll found that 60% believe that an innocent person has been executed within the past five years).
Yet, writing a requiem for the death penalty may be premature. Despite an increasing recognition of the death penalty's problems, overall public support remains strong. Polls consistently find that two out of every three Americans still favor capital punishment, and no widespread legislative movement toward moratoria has materialized.
This Article explores the death penalty's future in light of these two crosscurrents. Relying on recent empirical findings and other developments, the Article finds that one must think small about what is happening with the death penalty in the courtroom. That is, the steady decline in death sentences over the past decade does not appear to represent a sweeping turn against the death penalty by the public. Rather, the decline can be attributed to the convergence of a number of factors that together have gradually trimmed back the imposition of death sentences.
The Article next asks how much of a further decline in death sentences is possible given that a majority of Americans currently embrace a core belief that the death penalty is the only justifiable punishment for certain crimes (what the Article terms the McVeigh Factor). The Article explores the possibility that a blockbuster event, such as DNA exoneration of someone who has been executed, might lead to moratoria and eventually abolition. It concludes, however, that the immediate future is most likely to be determined by the continued emergence of factors that affect individual cases, such as better defense attorneys, more representative juries, and greater incentives for prosecutors to accept non-capital outcomes.
Suggested Citation: Suggested Citation
Sundby, Scott E., The Death Penalty's Future: Charting the Crosscurrents of Declining Death Sentences and the McVeigh Factor. Texas Law Review, Vol. 84, 2006; Washington & Lee Legal Studies Paper No. 2006-07. Available at SSRN: https://ssrn.com/abstract=909176