Will the U.S. Finally End the Death Penalty?

The American death penalty is extraordinarily fragile, with death sentences and executions on the decline. Public support for the death penalty has diminished. The practice is increasingly marginalized around the world. California, with its disproportionately large share of American death-row inmates, announces an end to the death penalty. The year? 1972. That’s when the California Supreme Court declared the death penalty inconsistent with the state’s constitutional prohibition of cruel or unusual punishments—only to have the death penalty restored a year later through popular initiative and legislation.

On Wednesday, again, California walked back its commitment to the death penalty. Though it’s not full-fledged abolition, Governor Gavin Newsom declared a moratorium on capital punishment lasting as long as his tenure in office, insisting that the California death penalty has been an “abject failure” in its discriminatory, ineffective, and inaccurate application. He also declared that the death penalty itself is an immoral practice.

Is this latest development in California, like the California Supreme Court’s decision in 1972, just a small roadblock to the continued use of capital punishment? Or is it a harbinger of further decline and perhaps even abolition of the American death penalty? We think the latter.

Garrett Epps: The machinery of death is back on the docket

Historically, moratoriums on executions within particular jurisdictions are often followed by abolition, as the community comes to realize that it can survive without the death penalty. California, of course, has already gone more than a decade without executions, but it seemed possible that executions would resume, given the success of a recent California initiative to accelerate executions and the establishment of a new execution protocol. Newsom’s decision to scrap that protocol and dismantle the execution chamber represents a more definitive move against the death penalty than the informal moratorium.

Newsom’s decision brings into focus the extraordinary pathologies of the American death penalty—its arbitrariness, discrimination, extravagant costs, and proneness to error. Removing more than a quarter of the country’s death row from the risk of imminent execution may cause other political leaders, including legislatures and executive officials, to reexamine their policies. California’s suspension of the death penalty also provides momentum for judicial intervention: As the footprint of the American death penalty continues to shrink (at present, there are only a few dozen executions a year in response to more than 15,000 homicides), it becomes less plausible to believe that the death penalty serves any social goals, particularly deterrence. From a constitutional perspective, when the death penalty cannot be tied to any social good, its imposition by definition becomes unnecessary and excessive.

In his announcement, Newsom highlighted more than just pragmatic reasons for jettisoning the death penalty. Like the California Supreme Court in 1972, Newsom pointed to the barbarity of the practice, insisting that it denies human dignity and is inconsistent with a civilized society. That sort of categorical rejection of the practice—and the emphasis on human dignity—has been marginalized in American discourse in recent decades, even as it stands as the most prominent argument for abolition outside the United States. In this respect, Newsom’s actions might renew domestic interest in the claim that no civilized nation should take the lives of its own people.

Read: The enforcers of the death penalty

Bold leadership on a topic as contentious as the death penalty always risks popular backlash. The California Supreme Court’s headline-grabbing rejection of the death penalty back in the 1970s was met with almost immediate reinstatement of capital punishment. And the U.S. Supreme Court’s landmark invalidation of the death penalty in 1972 provoked 35 states and the federal government to pass new capital statutes over the next four years, leading the Court to backtrack and reinstate the death penalty in 1976.

Past isn’t always prologue, though; there’s reason to be optimistic today. When the California and U.S. Supreme Courts struck down the death penalty almost 50 years ago, capital punishment had been largely unregulated. The backlash in the early 1970s depended largely on the view that new energy and attention to the death penalty could rescue it from its manifest and manifold problems.

We have now lived with more than four decades of extensive judicial and legislative attempts to improve the death penalty’s administration along several dimensions: narrowing the death penalty to the “worst of the worst” offenders, limiting arbitrariness and racial discrimination in choosing who should live and die, and ensuring the accuracy of capital verdicts. Virtually no one thinks these efforts have been successful. The practice of capital punishment has proved resistant to the regulatory efforts of courts and legislatures, with stark evidence of continued wrongful convictions, racial discrimination, and unfairness in capital cases across the country.

Given that a “Mend it, don’t end it” approach has clearly failed after decades of costly innovation, a policy that seeks simply to end the death penalty seems less vulnerable to attack now than in the past.

Read: The cruel and unusual execution of Clayton Lockett

In the early 1970s, moreover, only a small minority of other countries had abolished the death penalty. Now the United States is an extreme outlier: More than half of the nations in the world have formally abolished capital punishment, and more than two-thirds have abolished it in either law or practice. The United States is the only developed Western democracy to retain the death penalty and is among fewer than a handful of developed democracies that retain the punishment anywhere around the globe. This uncomfortably anomalous position makes American capital punishment more costly from a diplomatic perspective today than it was in the early 1970s, increasing the benefits of abolition and further reducing the likelihood of backlash.

Perhaps most important, the coalition against the death penalty is much broader now than in the early 1970s, when opponents focused primarily on discrimination and human rights. Today, conservatives of many stripes have their own concerns about the death penalty—particularly cost, but also consistency on the issue of the sanctity of life. The death penalty is not so clearly a left/right, progressive/conservative debate, which opens a space for further restriction and even abolition.

Though superficially similar, the fragility of American capital punishment today is quite different from its fragility in the early 1970s. The United States is virtually alone among developed democracies in regarding the death penalty as an acceptable moral practice. But Newsom’s moratorium might finally change that.