For years, the number of prisoners put to death in the United States has been in decline. That is still true, but with a wrinkle: this year will be the first since 2009 in which there were more executions than the year before. The grim milestone will likely be crossed on Wednesday night, when Anthony Shore is scheduled to be executed in Texas. Unless the courts intervene, it will be the 21st execution of the year, one more than last year. Eight others are scheduled through the end of the year.
Why does this matter? The upswing does not suggest that executions are likely to become more common, but it does grow out of recent courtroom battles. Chief among them is a big victory that the Supreme Court gave to state officials back in 2015. Officials had been looking for new drugs to use in lethal injections, and fighting to keep the sources secret from defense lawyers, as pharmaceutical companies kept pushing to keep their products out of death chambers. The court’s decision in the case of Glossip v. Gross set a high bar for arguments that new drug combinations would violate the Constitution’s ban on “cruel and unusual punishment.”
The upshot has been to clear the way for executions. This year, Ohio and Arkansas began executing again after long pauses (three years in Ohio, 11 in Arkansas). Arkansas was, publicly at least, trying to beat an expiration date for their store of the drug midazolam, a sedative, after years of litigation. Ohio had been tied up in the courts since prisoner Dennis McGuire visibly gasped and choked during his 2014 execution. Other states are trying new drugs: this summer, Florida became the first to execute with etomidate, an anesthetic, and Nevada is planning an execution for November involving fentanyl, the opioid implicated in thousands of overdose deaths in recent years, as well as Valium.
Cases can take a decade or more to reach the end of appeals, and the stop-start nature of drug availability, as well as litigation-imposed hiatuses, have meant that numerous prisoners can reach the end and accumulate in a queue. This happened at the national level when the Supreme Court examined lethal injection methods in 2008. “We tend to see ‘execution sprees’ in individual states,” said Robert Dunham, executive director of the Death Penalty Information Center, “followed by significant drop off in executions in those states.” In Arkansas, the execution of four prisoners in April sparked a media frenzy. In 2015, Missouri had the highest execution rate per capita as the state cleared a backlog. In 2016, Georgia had more executions than any other state as it cleared cases backed up because of drug litigation, according to the Chicago Tribune. None of these states have carried out many executions since these surges.
Beyond the drug issues, executions in an individual state can stop suddenly when a big case casts others in doubt. The Supreme Court struck down the death sentence of Florida prisoner Timothy Hurst last year, ruling that jurors, rather than a judge, should be the ones making key decisions about whether he should be sent to death row. The ruling had potential ramifications for dozens of prisoners whose trials involved the same problem, and executions have slowed to a trickle — one last year, two this year, and one more scheduled — while lower courts make sense of how to apply the ruling. A similar dynamic could arise in Alabama, where there have long been challenges to the state’s practice (ended this year) of letting judges overrule juries to hand down death sentences.
Looking down the road, Texas, long the country’s leading executioner, will be the state to watch. Executions slowed to 7 last year, and might rise above ten this year, but it will still be far less than the 40 carried out in 2000. Lethal injection drug battles have had little effect, but Texas prisoners do keep getting stays of execution. This may be due in part to a 2013 law bolstering the ability of prisoners to contest the forensic science that got them convicted. A 2015 law required news of execution dates to be better circulated among defense lawyers. “The defense lawyers are getting better and better,” Judge Elsa Alcala of the state’s Court of Criminal Appeals told The Texas Tribune last year. “They’re able to bring things forth that have never been brought forward before.”
In Texas and elsewhere, executions are likely to keep declining for one big reason: juries are handing out fewer death sentences. Texas sentenced only three people to death last year, and the situation is even more pronounced in Virginia, which has carried out the second-most executions since the 1970s, but only two this year (and none last year). The state’s death row has dwindled to four men. (Law professor Brandon Garrett has examined the reasons for this decline in death sentences.)
Support for the death penalty by President Donald Trump and Attorney General Jeff Sessions has not yet reinvigorated its use, which is mostly a state-level issue, and on Election Day last year voters in several locales responsible for high rates of death sentences in the past, from Houston to Tampa, elected district attorneys who promised to pursue the punishment more sparingly. “There will be substantially fewer prisoners left to execute in the long run,” Dunham said.
But that’s the long run.