On July 8, the Death Penalty Information Center, or DPIC, released its midyear update on capital punishment in the United States. Many of the findings were sadly, disturbingly familiar. For example, racial bias still plays a large role in who gets executed, and the Supreme Court continues to allow executions to proceed even when those being put to death have strong claims of innocence.

But there was also encouraging news.

In 1996, 317 defendants received death sentences, the second most of any year in the past half-century. Then began a steady and dramatic decline: 111 death sentences in 2006, 31 in 2016. And so far this year, only 12 people in the entire country have received death sentences. That is on pace to match last year, when juries handed down 23 death sentences. In short, the death penalty is dying a gradual death.

Take Texas, where a former governor once campaigned for re-election using photos of people executed during his tenure. Thirty-three people received death sentences in Texas in 1996. So far this year, that number is just two, the DPIC reports. Florida has led the way with four new death sentences, but in none of them did juries reach unanimous verdicts. The law in the Sunshine State now allows juries to impose such punishments if eight jurors agree to it.

Fewer death sentences means the execution pipeline is drying up. The death row population has dropped by half in the last 25 years and is below 2,000 for the first time since the 1980s. If the trend continues, America’s death rows will gradually empty as inmates are exonerated, pass away or executed. And the experience of countries that ended capital punishment suggests this trend will lead to lower, not higher murder rates.

Executions still understandably grab the headlines, especially given some of the gruesome methods in use. But decisions not to seek or impose the death penalty are more consequential for the future of capital punishment. If we look at them, we already seem to be on the road to abolition.

Play

Abolition will come not in some sudden way, like when the Supreme Court paused executions for several years in the 1970s. Rather, it will come in the day-to-day decisions of prosecutors who decline to bring capital prosecutions or in jury rooms where jurors refuse to condemn a convicted defendant to death. States may keep the death penalty on the books but rarely use it. Of the 27 states that authorize capital punishment, new death sentences have been handed down in only seven of them this year.

And, as the DPIC notes, in the 31 capital cases that went to a sentencing verdict, juries voted for life in prison without parole 19 times. As the DPIC explains, “death-qualified jurors who have indicated their willingness to impose death sentences … choose life sentences more often than they chose death.” Even in Alabama and Florida, the two states that don’t require unanimous juries to impose death sentences, jurors more often chose life.

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College.