An Associated Press story about the less frequent use of the death penalty in Virginia begins with this paragraph:
A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student [Hannah Graham] is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation.
The bulk of the story concerns a study by law professor John Douglass to the effect that prosecutors in Virginia are seeking the death penalty less frequently in recent years because capital defense has improved.
I have not read Prof. Douglass's study (which is not linked in the AP article), but would certainly be open to doing so. Prof. Douglass is a former colleague of mine in the US Attorney's Office, and a bright and fair-minded person.
Still, the story has a few problems.
The first is that its lead is false. The Commonwealth's Attorney never decided to decline to seek the death penalty and is, in fact, seeking it, as other outlets have uniformly reported, see here, here and here. The most obvious item in decline is less the death penalty than truthfulness in journalism, as shown, e.g., by the media's breathless reporting of the gang rape at that self-same University.
The problem was that the rape, like the "decision" not to seek a death sentence in the present case, never happened.
The second problem with the story is that it ignores an at least equally plausible explanation for the declining use of the death penalty in the state, to wit, a declining urgency for it. The murder rate in Virginia is less than half what it was at its peak a generation ago (9.3 murders per 100,000 in 1991 compared to 3.8 in 2013). One way to view the death penalty is as the answer to a need. When the need is less, resort to the remedy is less. Even the AP should be able to figure that one out.
The third problem with the article is minor but revealing: Prof. Douglass is referred to as on the faculty of the University of Virginia. It takes less than a minute to find out (if you don't already know, which I did) that he's on the faculty of the (quite good but less prestigious) University of Richmond (where he was Dean of the Law School until 2011).
I doubt the AP intentionally put John on the UVa faculty to add to the weight of his "death-penalty-out-of-favor" conclusions. More likely is that the author had the same degree of diligence about checking John's academic credentials that he had in checking whether the prosecutor in the murder of Hannah Graham is seeking a death sentence.
of course, the abduction-rape-murder screams out for the death penalty.
The death penalty is on the decline. The judiciary, which as a whole, is hostile to it isn't getting the kind of pushback it should be getting. It will ultimately strangle the death penalty.
I'll be very interested in the opinion(s) in the Oklahoma drug cocktail case as an indication of where the wind is blowing on the SCOTUS.
There is reason for concern, for sure. I think what's needed is an updated and expanded AEDPA. Indeed, it may come to the point that we'll need fixed time and cost limits on death penalty cases.