What might 2009 have in store for . . . the death penalty in the US?

Though I lament that the death penalty gets so much attention from the courts, pundits and policy groups, I find fascinating that the politics and practicalities of the death penalty are so unpredictable.  Sure, we can be confident that Texas will lead the way in executions and that there will be one or more death sentences handed out in the average week.  But we can never be sure of the outcome of particular cases (e.g., in 2008, the Atlanta courthouse killer dodged a death sentence), nor can we confidently predict how critical “swing” jurisdictions like California and the feds will actually administer its capital punishment system.

In this late 2007 post, I asked for 2008 capital punishment predictions.  Commentors had a mixed record of success, and the various comments provide a reminder that, at this time last year, the Baze lethal injection de facto execution moratorium was in place, and the Supreme Court had not yet even taken up the Kennedy child rape case.  Singificantly (and, in my view, joyfully), the Supreme Court does not have any major capital cases on its docket right now, and I am not aware of any big cases in the pipeline.  After a very eventful 2008, the Supreme Court’s impact on capital punishment in 2009 is unlikely to be consequential.

With the Supreme Court mostly mute, the practical story of the death penaltywill be shaped state-by-state  in 2009 by front-level participants and by lower court rulings.  The DPIC notes here that “23 executions [are already] scheduled for the first five months of 2009, and more dates are likely to be added; … almost all the executions scheduled are in the south and about half (12 of 23) are in Texas.”  I suspect 2009 will see more than the 37 executions of 2008, but I doubt we will approach the roughly 75 executions that had become the yearly average not too long ago.

Legislatively, Maryland in 2009 could become the second state (after New Jersey) to abolish its death penalty legislatively int he modern ear.  And tough financial times will likely continue the national trend away from this always costly and often inefficient ultimate punishment.  (StandDown Texas here has a nice review of some state-specific year-end capital coverage.)  Though I doubt any other states will formally abolish capital punishment, the de facto decline in death sentences sought and obtained by prosecutors ought to continue.

The highly unpredictable wild-card for the the death penalty in 2009 concerns federal dynamics and involvement.  As I explained in this post, IPresident Clinton’s vocal support for the death penalty and President Bush’s relative disengagement with these matters (despite his long-standing support for this punishment) may partially explains why there was an uptick in death sentences and executions through the 1990s and then a steady downward trend thereafter.  (Of course, the emergence of wrongful convictions as a salient political issue in capital punishment debates was also a big part of this story.)

As of this writing, I have little sense of President-elect Obama’s concerns or commitments regarding the death penalty.  (This past summer, he made the politically shrewd decision to speak out against the Supreme Court’s Kennedy decision prohibiting capital child rape prosecutions.  But I tend to attribute his statements to a desire to keep hot-button crime-and-punishment issues out of the 2008 campaign.)  Attorney Genereal nominee Eric Holder’s current perspectives on the death penalty are also opaque.  Moreover, as demonstrated by this new story at Politico, which is headlined “Burris sought death for innocent man,” one never can predict from where the next capital punishment story will emerge.

Some recent related posts:

• DPIC releases year-end report on state of death penalty in 2008
• The decline of death even in Texas!
• Notable second-term Presidential execution realities
• As goes Maryland, so goes the nation on capital punishment?
• More evidence that the death penalty is dying a slow death on the front lines
• Any speculations on what this Election Day could mean for the death penalty?
• What might a new administration mean for the federal death penalty?
• Effective media coverage of capital punishment realities in China (but not of federal capital realities)

UPDATE:  I see now that the Los Angeles Times has this new article about the death penalty in 2008, which includes this astute comments from the DPIC’s Richard Deiter:  

The economic realities of cash-strapped state and local governments have undermined capital punishment where moral and legal arguments have failed, said Richard Dieter, a Catholic University law professor and director of the center. “I don’t know that it will change public opinion, but the practical effects of the economy are just that — if you’re a politician and you have to cut something, do you want fewer police officers on the streets . . . or do you cut one death penalty and save a few million dollars?” Dieter said. “At a time when states are cutting back on teachers, police officers, healthcare, infrastructure and other vital services, citizens are increasingly concerned that the death penalty is not the best use of their limited resources.”