So what does? Unfortunately for opponents of capital
punishment, the most significant factor seems to be no kind of public
reevaluation of the policy but simply the declining prevalence of murder. The
murder rate in the United
States dropped by about 40 percent between
its peak in the early 1990s and the turn of the millennium and has remained
more or less flat since. The absolute number of murders has come down
significantly too, from nearly 25,000 in 1991 to barely 17,000 last year, according
to FBI statistics.
This shift has had two effects. The more direct one is
simply to reduce the number of death-eligible crimes and, therefore,
prosecutions. More diffusely, reducing crime means reducing public fear of
crime, which in turn erodes the momentum behind capital punishment. While the
change has not dramatically altered its political support, it seems to give everyone
a little more pause in its implementation. Prosecutors may feel less pressure to push for
death, judges less pressure to affirm a conviction or sentence. Jurors may hear
defense arguments against death with a more open mind. Governors may contemplate
clemency a little more freely. All of this has probably been compounded by the
slew of cases in which states have freed innocent people from death row or from
lengthy prison terms based on DNA evidence. Whereas ten years ago, America had a
large volume of cases and was erring on the side of the death penalty, today it
has a smaller volume, about which participants at every stage seem to feel more
anxiety.
But the murder rate will not stay down forever. And if we
are seeing not the beginning of the end but a kind of lull--a period in which
the solid majority in favor of capital punishment does not care enough about it
to keep it vibrant--the only hope for death penalty opponents is to use this
period to lock in systemic reforms that will inhibit its rebound when the tide
turns. If that’s the goal, they’re going to have to do better than abolition in
New Jersey, a
state that had capital punishment on its books but never actually used it. Unless
they can generate similar legislative gains elsewhere--and there have been some
but not enough--the decline will prove ephemeral and the New Jersey victory, not to mention the
current national pause, will seem hollow indeed.