Las Vegas Sun

March 28, 2024

Stay of execution for death penalty in the United States is unlikely to last

The execution of Dzhokhar Tsarnaev for his role in the Boston Marathon bombing — if it ever takes place — quite possibly will be the last of its kind, remembered as the last time the United States government put a person to death.

After a formal sentencing hearing this month, Tsarnaev’s lawyers are expected to request a new trial. As the case winds through the lengthy appeals process, the prosecution’s main argument for execution — that it offers closure to victims and their families — will be revealed as illusory. In effect, the appeals phase will put the death penalty on trial, and as time passes, public and legal opinion probably will turn decisively against the “ultimate punishment.”

Thirty-four states including Nevada are “retentionist” — they still have some form of capital punishment on the books — and 16 states have executed a person in the past three years. But the number of executions and new death sentences is at a 20-year low, and just a few states are responsible for the vast majority of executions.

Many U.S. cities and a number of states are now anti-death-penalty zones — not just liberal bastions such as Berkeley, Calif., and Cambridge, Mass., but also New Jersey, Connecticut, Illinois, Maryland and New Mexico. A bill to reintroduce the death penalty in Massachusetts was defeated. Bills to outlaw the death penalty are in process in Delaware, Kansas and Colorado. Even in Nebraska, a staunchly conservative state, a bill to abolish the death penalty had such strong bipartisan support that legislators overrode a veto by the governor.

Meanwhile — and driving that change — recent developments have brought intense public scrutiny of this controversial practice.

This year, two death-row inmates were exonerated and set free: Debra Milke, jailed since 1990 in Arizona, and Anthony Ray Hinton, jailed since 1985 in Alabama by a prosecutor who said he knew Hinton was guilty “just by looking at him.” They were the 151st and 152nd U.S. death-row prisoners so exonerated — the latest illustrations that the evidence in capital cases is often faulty or nonexistent.

Also this year, Utah reinstituted the practice of execution by firing squad, even though (as Gov. Gary Herbert put it) it’s “a little bit gruesome.” The move was a tacit admission that the lethal-injection procedure (which has changed as pharmaceutical companies have ceased production of several lethal drugs) is now so unreliable that shooting a man at close range is the more humane option.

Indeed, the medical establishment is increasingly uncomfortable with lethal injection. At its annual meeting in March, the American Pharmacists Association declared that “the practice of providing lethal-injection drugs is contrary to the role of pharmacists as health care providers,” thus joining associations of doctors and of anesthesiologists in deeming cooperation with executions contrary to the Hippocratic Oath (“first do no harm”).

This month, the U.S. Supreme Court is expected to rule in a case brought by prisoners on death row in Oklahoma, contending that the death penalty as carried out there — by lethal injections secretly arranged and shoddily administered — constitutes cruel and unusual punishment. The case is the most substantive legal challenge to the death penalty in the U.S. in decades. And it will put the court in the quixotic position of weighing the legality of the very procedure (lethal injection) the Justice Department is brandishing as an instrument of justice in the Tsarnaev case.

The death sentence given to Tsarnaev is a final spasm of the death penalty, a punishment that the U.S. is on its way to abandoning, as most civil societies already have done.

When the Helsinki Conference on Security and Cooperation in Europe took place in 1975, 16 European countries had already abolished the death penalty or committed to doing so. By the time the Berlin Wall came down, there were 19. By 2002, 38 more countries around the world had done so, including much of the former Soviet Union.

Today, 105 of the 192 countries represented at the United Nations have abolished the death penalty by law, and at least 43 more have abolished it in practice, either through public moratorium or de facto moratorium (when a country declines to practice capital punishment for a decade or longer). Those that still employ the death penalty — among them Saudi Arabia, Iran, Iraq, Egypt, Somalia, China, Japan and the U.S. — are outliers and strange bedfellows.

Of course, there is nothing to prevent future U.S. attorneys general from seeking the death penalty — for federal crimes involving terrorism and national security, for example — and future juries from delivering death sentences in capital cases. Societies and social norms, however, change quickly.

The last time a convicted criminal was executed in Massachusetts — 1947 — Harvard University was an all-male institution, “separate but equal” was still the law in much of the country, and the high wall in left field at Fenway Park had just been painted green. The last time the federal government executed a convicted criminal — Timothy McVeigh in June 2001 — the euro was a new currency, the Internet had only 50 million users and the World Trade Center towers were still standing.

President Barack Obama, as he leaves office in 2017, could grant Tsarnaev clemency, reducing his sentence to life in prison without parole. But whether he does so, the long-term outlook is clear: In the United States today, the death penalty is on the verge of death.

Mario Marazziti is the author of “Thirteen Ways of Looking at the Death Penalty” and co-founder of the World Coalition Against the Death Penalty. He wrote this for the Los Angeles Times.

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