As public and state support for capital punishment in the U.S. is declining, the resolve to maintain the death penalty seems to be hardening in an arena where death-penalty policy once had seemed poised to change: the Supreme Court, says Dahlia Lithwick of Slate.com in the Washington Post. The overall trend is clear. Two states have imposed formal moratoriums on the death penalty; executions in New York are on hold; 11 states have effectively barred the practice because of concerns over lethal injection; and 11 more are considering moratoriums or repeals.
The Innocence Project says there have been 194 post-conviction DNA exonerations. At the Supreme Court, Duke University professor Erwin Chemerinsky observed that in the final years of the William Rehnquist Court, the justices showed a marked tendency to overturn death sentences. Chemerinsky speculated that “a majority of the Court was (and continues to be) deeply concerned about how the death penalty is administered in the United States.” Largely as a result of a change in the court’s composition, that trend may now be ending. Just as a few states are defiantly expanding their use of the death penalty. The new chief justice, John G. Roberts Jr., when he worked in the Reagan White House, wrote a memo suggesting that the high court could cut its caseload by “abdicating the role of fourth or fifth guesser in death penalty cases.” Last term, in the case of a man convicted of a rape and murder who later produced DNA evidence raising serious doubt that he was the culprit, the court ruled 5 to 3 that this evidence warranted a new hearing. Roberts led the dissenters, who felt it wasn’t enough for the new evidence to cast doubt on the conviction; to grant relief, the evidence had to prove he “was actually innocent.”