On the surface, Thursday’s decision by the state of Washington’s Supreme Court declaring its death penalty unconstitutional might seem to impact only the folks tucked away in the nation's northwestern corner.
After all, as the 20th state to ban or suspend capital punishment, Washington remains in the minority. And the state’s highest court did not rule the death penalty illegal in and of itself, but rather the way it has been carried out, saying it is “imposed in an arbitrary and racially biased manner.’’
Legal scholars, however, see this as the latest step toward the continued abolition of the punishment, its death knell, so to speak, and believe Washington’s move toward commuting death sentences to life in prison will become more the rule than the exception across the United States.
“It is part of a very clear trend over the last 10 years of states abolishing the death penalty, either through their legislature, like in New Jersey, or through their courts, like in Washington, New York and some of the other states,’’ said Ellen Kreitzberg, a Santa Clara University law professor who has written extensively about capital punishment.
Since a nationwide moratorium on the death penalty was lifted in 1976, executions in the U.S. peaked at 98 in 1999 but have declined at a fairly steady rate since then, to 23 in 2017 and 18 so far this year, according to the Death Penalty Information Center.
Starting in 2007, 11 states have banned or suspended the death penalty. Nebraska, which abolished the practice in 2015, is the only state in that period to bring it back, restoring it through a ballot initiative the next year.
Some of the states that have kept the punishment in place hardly use it. New Hampshire, for example, is the only northeastern state that still allows the death penalty, but it hasn’t had an execution since 1976. Neither has Iowa. Wyoming has had one.
Kreitzberg said states like Colorado, Oregon and Pennsylvania, which have moratoriums but not outright bans in place — as was the case with Washington — are likely to follow suit and banish the practice altogether. It’s already forbidden throughout the upper Midwest.
On the other hand, all of the Southern states have retained the prerogative to execute prisoners, and have done so much more frequently than the rest of the country. When Texas and Oklahoma are included in the region, the South has performed 1,211 of the 1,483 executions on record nationally since 1976.
Even removing those two states — Texas is the undisputed leader with 555 — Southern states have carried out 544 executions.
Franklin Wilson, associate professor of criminology at Indiana State University, said customs and mores in the population, which may include religious beliefs, dictate which direction the states take on the issue.
“I think it comes down to the culture in the general public as far as what their attitudes are with regards to punishment,’’ Wilson said.
Wilson, who has taught in Texas, Tennessee, Kentucky and Missouri prior to his current job in Indiana, also notes that general educational achievement tends to have an impact on attitudes toward the death penalty.
Of the 20 states with the highest percentage of college graduates, according to an American Community Survey from 2015, 14 have abolished or suspended the practice.
“While research has demonstrated that individual education level has minimal-to-no impact on support of the death penalty, overall state education levels may be more telling,’’ he said. “There appears to be at least a cursory correlation between the overall education level of a state and whether the state retains the death penalty.’’
In its unanimous decision, Washington's high court cited research that indicates the impact of race in juries’ decisions to impose a death sentence.
That has been borne out by a number of studies, Kreitzberg said, with black defendants not only more likely to draw the harshest punishment, but the presence of white victims also representing the most statistically significant factor in the handing out of such sentences.
While African-Americans make up about 13 percent of the U.S. population, they account for 34.3 percent of the defendants who are executed, statistics from the Death Penalty Information Center show. More startlingly, 76 percent of the victims in cases that resulted in execution were white.
The history of the South and the prevailing attitudes that have led to some of those numbers may contribute to keeping the death penalty in place in the region — even as it continues to fall into disfavor elsewhere.
“It’s hard to imagine the connection from slavery to lynching to the death penalty was a random happenstance,’’ Kreitzberg said. “There’s certainly a connection between those in their historical development.’’