- The Washington Times - Monday, December 10, 2012

For just the second time since 1984, Virginia and Maryland will end the year without executing a single death row inmate — reflecting a national trend of states using capital punishment less often over the past decade.

Maryland has long been reluctant to use its death penalty. Virginia, which ranks only behind Texas in the number of executions over the past 35 years, has put fewer people to death in recent years as many cases are tied up in appeals and as juries become less likely to recommend the punishment in capital murder cases.

Analysts say executions have plummeted nationwide and are banned in some states because of rising concerns over heavy court costs, biased sentencing and, perhaps most prominently, the fear that a state could — or already has — killed an innocent person.

“The advent of science in the world of criminology has showed that the justice system makes mistakes,” said Richard Dieter, executive director of the Death Penalty Information Center. “That, I think, is a real shocker for the public and jurors, and they’re now less likely to give a death sentence.”

Yearly executions in the U.S. have decreased by more than 50 percent since 1999, when 98 people were put to death — the most since the Supreme Court placed an effective moratorium on capital punishment in 1972, and reaffirmed its legality in 1976.

This year, 42 convicts have been executed in a total of nine states, even though 33 states allow the death penalty and more than 3,000 inmates are on death row nationwide.

The year’s final execution is scheduled for Tuesday in Florida, where former South Florida police officer Manuel Pardo, 56, is scheduled to be executed for killing nine people in 1986. The execution would bring the nationwide total to 43, matching last year’s total but falling short of the 46 inmates who were executed in 2010.

Mr. Dieter said execution rates rose steadily in the 1980s and 1990s as reducing crime rates became a major political issue but have since declined largely because of prosecutors’ and juries’ reliance on life without parole as a common alternative.

Slow appeals process

David Muhlhausen, a senior fellow at the Heritage Foundation, said he thinks the drop in executions largely has been a result of a national decline in murder rates and longer appeals processes for death row inmates.

According to the Bureau of Justice Statistics, inmates executed in 2010 — the most recent year for which statistics were available — had been under sentence of death an average of 14 years and 10 months, which was nine months longer than those executed in 2009.

Mr. Muhlhausen, who supports the death penalty, said he does not expect executions to increase anytime soon unless the legal process is expedited.

Although he is reluctant to call for such reforms because they could increase the likelihood of wrongful executions, he said, the death penalty should be kept in place to punish the nation’s most violent offenders and serve as a deterrent.

“Each additional execution, in fact, saves lives,” he said. “And that’s something opponents don’t consider.”

While a declining crime rate has led to fewer executions, Mr. Dieter said, another major factor has been a number of high-profile exonerations of death row inmates.

Sentence overturned

Since 1973, 141 people have been sentenced to death but subsequently had their convictions overturned for reasons including withheld evidence by prosecutors, coerced confessions and false or unreliable witness testimony, according to the Death Penalty Information Center.

About half of those exonerations have occurred in the past 15 years, and 18 took place after the discovery of DNA evidence that contradicted court testimony or pointed to other assailants.

None of the 1,319 people executed since 1976 has been legally exonerated after execution, although activists and legal groups have argued for their innocence in numerous cases.

“You can release an innocent person from prison, but you can’t release them from the grave,” former Illinois death row inmate Randy Steidl told Northern Kentucky University’s the Northerner newspaper last month. He spent 17 years in prison for double murder before he was acquitted in a 2004 retrial because of a lack of evidence and a recanted witness statement.

Another factor in declining executions over the past two years has been a national shortage of sodium thiopental, a barbiturate once commonly used in three-drug lethal injection cocktails.

The drug was pulled off the market in 2011 after its only U.S. producer moved operations to Italy. The Italian government prevented the product from being exported for use in executions.

States including Ohio and Virginia have countered by using pentobarbital, a powerful barbiturate that can be used for single-drug executions, instead of sodium thiopental.

Public sentiment

While polls show that sentiments against the death penalty in the U.S. are at their highest level in 40 years, a majority of Americans still favor capital punishment.

A Gallup poll last year found that 61 percent of Americans support a death penalty in cases of murder, and last month voters in California — which, with 724 death row inmates, houses one-quarter of the nation’s condemned prisoners — voted down a referendum that would have repealed capital punishment.

In Virginia, an effort is under way by some lawmakers to broaden the death penalty by eliminating the state’s so-called “triggerman rule,” which in most cases prohibits the state from executing a person convicted of first-degree murder if that person was not the only one who physically committed the act.

The rule has exceptions for murder-for-hire schemes, which allowed the state to execute Teresa Lewis in 2010, and for acts of terrorism, which it used to execute Beltway sniper mastermind John Allen Muhammad in 2009.

Delegate Robert B. Bell, Albemarle Republican, said he thinks the death penalty is an effective deterrent that has prevented criminals from killing witnesses to lesser crimes or escalating non-capital offenses such as kidnap and rape.

Virginia has executed 109 people since 1976, second to Texas’ 491.

“The majority of Virginians think that for the most heinous of offenses the death penalty is an appropriate sanction for the jury to consider,” he said. “We have the appeals process in place to make sure that we get it right.”

Abolishing the death penalty

Nonetheless, lawmakers in Virginia and other states have made recent calls to repeal the death penalty. The practice has been abolished in 17 states and the District, with five of those states — New Jersey, New York, New Mexico, Connecticut and Illinois — banning it in the past five years.

Maryland lawmakers are expected to consider a ban next year, although the state has executed just five people since 1976 and none since 2005.

The state’s highest court placed a moratorium on executions in 2006 after deciding that the state’s regulations on lethal injections were outdated, and a 2009 law now requires biological evidence, videotaped confessions or conclusive video evidence for the death penalty to be applicable.

Death penalty supporters have called the law an effective ban, but opponents say it is time for an official repeal.

“We should get it off the books,” said Delegate Samuel I. Rosenberg, Baltimore Democrat who has proposed past bills to repeal the death penalty. “The possibility of executing an innocent person, the extraordinary time, effort and resources that go into death penalty cases can be used elsewhere.”

• David Hill can be reached at dhill@washingtontimes.com.

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