by Maurice Chammah, The Marshall Project,
Jan. 3, 2018

Only a little more than a year ago, many opponents of the death penalty were cautiously optimistic that the U.S. Supreme Court — perhaps with a Clinton appointee or two — might strike down the punishment for good. Then came President Donald Trump, who tweeted “SHOULD GET DEATH PENALTY!” about one criminal suspect and recently called for the execution of anyone who kills a police officer. He picked an attorney general, Jeff Sessions, known for his efforts to pursue executions in Alabama, and a Supreme Court justice, Neil Gorsuch, whose first major decision was to deny a prisoner’s request for a stay of execution.

But does all that matter? The number of executions and new death sentences have been trending downward for years. Support for capital punishment in the U.S. is at about 55 percent, its lowest point in more than four decades. Trump’s first year saw a slight rise in death sentences and executions, but those are the product of counties and states; the president and attorney general have little say beyond the occasional federal case.

What can we expect at the beginning of 2018? Is the death penalty almost gone, or will the president’s support rejuvenate it?

To answer those questions, there will be four places to watch:

The Counties
It’s up to local, elected district attorneys to decide whether to ask a jury for the death penalty. In the 1990s, many prosecutors campaigned on their successes sending men to death row. But much has changed. In the last two years, voters elected district attorneys in Denver, Philadelphia, and Orlando, Fla., who all promised to stop seeking the death penalty completely. In Orlando, the move prompted a backlash, as Florida Gov. Rick Scott removed potential death cases from new DA Aramis Ayala’s authority; she sued, lost, and rescinded the death penalty ban.

In Houston and Tampa, newly elected DAs made vaguer pledges: they said they would be more judicious about which cases merit the death penalty. Inevitably, there will be high-profile crimes in these communities, and many — perhaps inspired by the president — will call for harsh punishments. It will be worth watching these prosecutors handle the new cases that cross their desks.

As the death penalty disappears, it has been replaced by life without parole, a punishment that California prisoner Kenneth Hartman once called “death by another name.” In Texas alone, between 70 and 100 people are sentenced to life without parole each year — far exceeding death sentences there. Keep an eye on prosecutors who spare prisoners from execution to see if they send even greater numbers to prison for life.

The States

It takes a DA and a jury to send someone to death row, but it takes a massive state bureaucracy to kill him. Courts must uphold the convictions, prison officials must secure lethal injection drugs, and governors and attorneys general must clear political and legal obstacles.

In recent years, executions have become even more difficult to carry out because drug companies have protested the use of their products in lethal injections. States have searched for new sources and combinations of drugs, and defense lawyers have fought these new plans in court.

Eight states managed to clear these obstacles and carry out executions in 2017. The result was more executions than the year before, when only five states pulled it off.

But numerous other states have made moves to obtain lethal injection drugs and revive their death chambers. In 2018, we will see if they succeed, or whether opponents are able to hold them off through litigation. Nebraska and Nevada are both trying new drug combinations that feature fentanyl, the opioid responsible for thousands of accidental deaths in recent years.

This is an area where Trump could have an effect. In Arizona, Nebraska, and Texas, efforts to import execution drugs from India have been stymied by the federal Food and Drug Administration. Trump could push the agency to let the drugs in, paving the way for many states to seek drugs abroad.

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