Executions rise in 2017, but downward trend continues
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WASHINGTON — The nation's rapidly declining rate of executions has leveled off, but opponents of capital punishment say the death penalty remains on borrowed time.

The execution Thursday of Alabama cop killer Torrey McNabb was the 21st this year, marking the first time that number has risen since 2009. The 2017 total could approach 30 before the year is out, depending on last-minute legal battles.

That ends a relatively steady drop in executions since 2009, when there were 52. Only three times has the annual number increased since executions peaked at 98 in 1999.

Several factors have contributed to this year's hiatus in the broader trend. Eight states carried out executions, a spike from recent years. Among them were Arkansas, which executed four prisoners over eight days in April before its supply of lethal injection drugs expired, and Florida, which had halted executions for 18 months after the Supreme Court found its sentencing procedure unconstitutional.

Other executions this year have illustrated the problems opponents highlight in their quest to end capital punishment. Claims of innocence and requests for additional forensic testing went unheeded. Faced with complaints from pharmaceutical companies, some states used secretive methods to obtain drugs for lethal injections. And amid charges of racial disparities, nearly all the murder victims were white.

Yet another issue will be on display during oral arguments at the Supreme Court next week: whether indigent defendants in capital cases must prove they need more experienced lawyers and resources before they will be provided.

Despite all those factors, death penalty opponents say they're not worried about the slight uptick in executions. They note that three-, five- and 10-year trends remain down.

“We’re seeing the last grasps of trying to hold on to the death penalty in this country," said Heather Beaudoin, national organizer for Equal Justice USA. "The fact that we may be up in numbers this year does not discourage me.”

Until this year, the number of states carrying out executions had dropped from nine in 2013 to seven, six and just five in 2016. Only about 16 of the nation's more than 3,000 counties dole out capital sentences regularly.

Supreme courts in Florida, Delaware and Connecticut recently struck down those states' death penalty procedures, continuing a trend against capital punishment. But voters staged a comeback of sorts last year, defeating an abolition effort in California, restoring it to the books in Nebraska and adding it to the state constitution in Oklahoma.

What remains of capital punishment these days is largely decades-old death sentences being carried out. 

"Twenty years ago was the height of the death sentencing era, and that's the average time individuals are on death row before execution," said Ben Cohen, a lawyer with the Capital Appeals Project in New Orleans. "The long-term trend remains clearly aimed at replacing death sentences and executions with life without parole."

A decline in new death sentences, from about 300 annually in the 1990s to fewer than 50 per year, will continue to result in fewer executions in the future, says Rob Smith, executive director of the Fair Punishment Project. 

“We have people on death rows across the country who were put there 10 years ago, 20 years ago, 30 years ago by juries who would never return that death sentence today and prosecutors who would never seek that death sentence today,” Smith said.

Nevertheless, several legal challenges to lethal injection methods have failed since the Supreme Court ruled in 2015 that states could use midazolam, a controversial sedative that had been implicated in several botched executions. Alabama, Arkansas, Ohio and Virginia are among states still using midazolam. 

Arkansas' supply was about to expire in April when it sought to execute eight inmates over a two-week period. Courts intervened in half those cases.

“What has happened is that states go on execution sprees,” said Robert Dunham, executive director of the Death Penalty Information Center, citing Georgia in 2016 and Missouri in 2014-15.

Most last-minute appeals fail at the Supreme Court, which reinstated the death penalty in 1976 after a four-year moratorium. But two years ago, Justice Stephen Breyer argued that capital punishment is unreliable, arbitrary and results in decades-long delays. For those reasons and others, he said, "most places within the United States have abandoned its use."

Breyer's dissent has encouraged a rash of new cases contending that putting prisoners to death violates the Constitution's prohibition on cruel and unusual punishment.

"A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance," appellate lawyer Neal Katyal argues in seeking Supreme Court review in one such case, Hidalgo v. Arizona. "This court’s opinions, supported by reams of evidence, are trending unmistakably toward that consensus."

Read more:

Does the death penalty serve a purpose? Supreme Court hasn't decided either

Courts, states put death penalty on life support

Death penalty divides Supreme Court after Scalia's death

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