1990s. Since then there has been a steady decline, to 112 in 2009. Figure 2-2 makes clear that far more death sentences are imposed than are carried out.

When a defendant is convicted and sentenced to death, theoretically what follows is an execution. An execution, however, does not follow a death sentence very swiftly or at all for a variety of reasons. The Bureau of Justice Statistics reports that only 15 percent of people sentenced to death between 1973 and 2009 had been executed by the end of 2009. Of these cases, 46 percent ended in alternate ways, including reversed convictions, commuted sentences, or the death of the inmate. Thus, 39 percent of the inmates sentenced to death during the 36-year period were still on death row in December 2009. These inmates, on average, had been under a death sentence for more than 12 years. Because of the smaller number of executions than death sentences every year, the death row population has increased steadily over this period. The number of prisoners facing a death sentence was a little over 400 in 1977 (the first full year after reinstatement); by 2009 it was close to 3,200 (Bureau of Justice Statistics, 2010, Table 18).

These national-level data conceal large differences across states in the use of the death penalty. During the post-Gregg era, the death penalty was not legal in all states, and in some states it was only legal for part of the period. Also, among states authorizing the death penalty, in at least some cases there were very large differences in the extent of the legal authority for capital punishment and the frequency with which that authority was used. Notably, these variations across states and over time in the legal authority to impose the death penalty and the frequency with which that authority was exercised created the empirical basis for the deterrence studies reviewed in this report.

Table 2-1 shows the legal authority for a death sentence by state from 1976 to 2009. A geographically and otherwise diverse group of 10 states never authorized the use of the death penalty during this period: Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, North Dakota, Vermont, Wisconsin, and West Virginia. Of the other 40 states, 29 provided that authority for the whole period. The remaining 11 states experienced changes in death penalty authority from 1976 to 2009:

•   Two states—North Carolina and Wyoming—transitioned in 1977, immediately after the Gregg decision.

•   Four states—Kansas, New Hampshire, Oregon, and South Dakota—transitioned from non–death penalty to death penalty status after 1977.

•   Two states—New Mexico and Rhode Island—transitioned from death penalty to non–death penalty status after 1977.

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