The death penalty situation in the US has just become even more absurd – something has to give

The creeping death of capital punishment in America is now becoming as ghoulish as the death penalty itself.

No longer is the debate about the basic merits of a practice that has been abolished either de jure or de facto by three quarters of the countries on the planet. It’s about whether the companies and pharmacies that provide the drugs used for lethal injection - in effect the sole method of execution used here - should have their identities protected by law to spare them public protest and commercial embarrassment.

Take the latest convoluted turn of events in Virginia. This one-time cornerstone of the Confederacy has traditionally been an enthusiastic practitioner of capital punishment. But Virginia’s “machinery of death” – to use the term coined by Harry Blackmun, the great Supreme Court justice who in the 1990s turned from acquiescence to outright opposition to the death penalty – is now paralysed by the difficulty of obtaining the drugs, and by the arguments over a “shield” law for suppliers.

As a result Virginia has managed to put only one person to death in the last three years. And other death penalty states like Arkansas, Ohio and Missouri are being forced into similar legal contortions, as they seek to get hold of the drugs while concealing the source of them.

This week, Governor Terry McAuliffe tried to cut the Gordian knot. McAuliffe, it should be noted, is a Democrat and a Catholic who personally opposes capital punishment. But Virginia’s legislature is Republican-controlled and in favour of the death penalty, and McAuliffe has said he will abide by its wishes. So he came up with a compromise.

He vetoed a Republican bill that would have simply ordered that if drugs couldn’t be found for a lethal injection, then the electric chair, Virginia’s former method of execution, should be used instead. The chair, McAuliffe said, was “reprehensible and inhumane.” Instead, he put forward an amendment to the bill, requiring that the names of drug suppliers should be kept secret, even in the event of a botched execution.

McAuliffe will probably have his way. Liberal Democrats are furious that he's maintaining capital punishment, but the Republican majority in the state’s Assembly has little choice but to go along if it wants a death penalty at all. And thereby hangs (if you pardon the pun) a larger problem. America, slowly but surely, is turning towards getting rid of it.

In its latest report into the death penalty worldwide, Amnesty International stated that 1,634 known judicial executions took place in 2015, a jump of over 50 per cent in a year. But the vast bulk were in three countries: Saudi Arabia, Iran and Pakistan.

Then of course there’s China, which releases no figures, but whose total might well double the Amnesty figure. The US, however, is now a very modest contributor to the total.

In 2015, only 28 people were executed here, the fewest in a quarter century (and one of them after a 36-year wait on death row.) Moreover, all but four died in just three states: Texas, Georgia and Missouri.

Of the 50 US states, 34 haven’t executed anyone over the last five years, and soon South Carolina, another historical bastion of the death penalty, will join them.

Juries too are handing down far fewer death sentences, only 49 in 2015. Texas, long America’s chief executioner, was responsible for only two of them. For the first time in decades, the death row population has dropped below 3,000 – and only a relative handful of them will actually meet their end in the execution chamber.

Nowhere is the situation more absurd than in California, where the machinery is so rusty it's falling to pieces. Its death row, housing 743 inmates, is the most populous of any state, and no wonder. Since California re-instated the death penalty in 1978, just 13 people have been executed, the last of them a decade ago. And all this at a cost of no less than $4bn in taxpayers' money. In economic terms alone, capital punishment is a lousy deal.

But that’s far from the only reason the tide is turning. The biggest one is the near certainty, as DNA evidence has become more conclusive, that innocent people have been put to death.

Last year alone, six death row inmates were exonerated. It’s anyone’s guess how many more wrongly convicted murderers are still there, victims of tampered evidence, over-zealous prosecutors and clueless, ill-paid defence lawyers. Small wonder a majority of Americans, when offered the choice, prefer life imprisonment without parole to the lethal injection gurney.

Thus far the demise of the death penalty has been gradual and incremental. McAuliffe’s manoevring is part of the process – and it too could come to grief as journalists use the freedom of speech provisions of the First Amendment to identify suppliers of the drugs, and condemned inmates seek the latters’ names, arguing a constitutional right to do so.

But everything could soon change. The ultimate arbiter is the Supreme Court, which during a quarter century of conservative control has merely chipped away at the death penalty, for instance by barring the execution of minors and the mentally incompetent. Otherwise it has deferred to the states.

It has shied clear of reviewing the underlying constitutionality of the death penalty, not only under the 8th amendment barring “cruel and unusual punishment,” but also the 14th, that stipulates “equal protection of the laws” for all.

In reality the ultimate punishment is disproportionately reserved for blacks and Hispanics, and its imposition is a lottery. The death penalty is supposed to be for the “worst of the worst” – but in one state, even one county of the same state, you could be sentenced to death, but in another state or county receive 20 years for an identical offence. So much for equal protection.

Now, however, the Supreme Court that Blackmun once graced could be transformed, should Democrats win back the presidency and control of the Senate (as polls suggest they will, if Donald Trump or Ted Cruz is the Republican nominee.) Right now there is a vacancy on the nine-person bench, meaning an equal split between four conservatives and four liberals.

But a new Democratic president could, and surely would, choose a liberal, meaning there would be a majority ready to accept a case challenging the very constitutionality of capital punishment. And if the Court were to agree, not only would Terry McAuliffe be off the hook. America would be a better place.