EDITORIAL
Death penalty is increasingly archaic

A new legal theory running up (thus far unsuccessfully) against appeals courts holds that the death penalty is unconstitutional on its face. That is, it amounts to cruel and unusual punishment because it eliminates, forever, the possibility that a person might prove his innocence.

It's unclear whether this somewhat novel theory will gain traction. But it has become increasingly clear that the United States has sent to death row — and occasionally executed — individuals who were indeed innocent.

But while new and increasingly sophisticated legal theories are being developed, the death penalty may be disappearing out of sheer inertia. It cannot happen soon enough.

The Death Penalty Information Center reports that there were but 59 executions last year, down 40 percent from the 1999 peak when 98 people were put to death. In fact, it is not just executions that are diminishing. Death sentences are also declining.

This suggests a steady pattern that will weigh heavily on the U.S. Supreme Court as it considers death penalty cases; the court has already signaled it is waiting for solid signs of a change in judicial, legal and public attitudes before it can conclude that the death penalty is unconstitutional.

One additional piece of evidence that should help the court in its decision-making: The death penalty is grossly unfair in its geographic distribution. Of 38 states that permit the death penalty, the Information Center reports, only 12 actually executed anyone. And 27 of those executions occurred in Texas alone.

Therefore, where one lives and commits a capital crime has great implications on whether one dies for it.

But there is still strong public support for the death penalty in the abstract. It will take time for the United States to join most of the rest of the civilized world in abolishing this archaic penalty.

But statistics suggest that day is surely coming. The sooner, the better.