Is there a death penalty in the United States?

Different states, different penalties

One of the consequences of the United States' emphasis on federalism and local self-government has made it a place where there are no rules on the death penalty, i.e., laws and enforcement of the death penalty vary from state to state and territory to region.

Sixteen states and the District of Columbia do not have the death penalty – Michigan was the first to abolish the death penalty in 1846, and New York, New Jersey, Illinois and New Mexico have ended the death penalty in recent years.

Another 20 states (and federal***) have death penalty laws, but they are rarely used. Kansas and New Hampshire have not executed anyone for decades, making them nominally "death penalty states." Others, such as California and Pennsylvania, have many murderers sentenced to death but very few are executed, and in these states there are hundreds of prisoners on the "death books."

Fifteen other states — mostly in the South — have death penalty laws, impose the death penalty and carry it out. Even so, executions are relatively rare, and they are only carried out after years of legal battles. The average time from judgement to execution is 14 years.

In practice, the death penalty can only be used for the crime of aggravated murder, i.e. murder with aggravating circumstances. Even in the worst crimes, the death penalty is the exception, not the rule. In 2010, there were about 14,000 homicides in the United States, 114 of which resulted in death sentences. Most death penalty cases are likely to be overturned by an appellate court or commuted by the governor. A total of 46 people were executed in 2010, close to the average for recent years.

The number of death sentences has declined

About 300 years ago, organized societies used the death penalty for many types of crimes and criminals. Today, the death penalty is banned in most developed countries, especially democracies. By 2010, 95 countries had abolished the death penalty. Nine countries have abolished the death penalty for ordinary crimes, 35 have death penalty laws but have not carried out executions in the past 10 years, and 58 have carried out executions.

One explanation for this change is that modern *** has developed less violent means—including police and prisons—to control crime and punish criminals. As these societies became more orderly, their politics more democratic and humane, and the death penalty became less necessary and justified.

At the beginning of the 20th century, the death penalty was still retained in most developed countries, but it was rarely implemented. The United States, despite its relatively high homicide rate, has also participated in this reform, often leading the way. Some states in the United States were among the first to narrow the scope of the death penalty, abolish public executions and abolish them altogether, and strive for less painful executions.

By the end of the 20th century, European countries abolished the death penalty one by one, and France finally abolished it in 1981. Many U.S. states did not follow in their footsteps and kept the death penalty until today, 30 years after France dismantled the guillotine.

Supreme Court decision

One U.S. institution that has the power to decide on the abolition of the death penalty nationwide is the U.S. Supreme Court, which can terminate the death penalty by declaring it unconstitutional. This came close to happening in 1972, when a majority of the court ruled that the death penalty, in the manner then performed in the state, violated the constitutionally guaranteed provisions of due process, equal protection, and the prohibition of cruelty and extraordinary punishment (Furman v. Georgia, Furman v. Georgia）。

In the years following the Fairman case, 35 states passed new laws that reintroduced the death penalty but reformed procedures and established protective measures against arbitrariness and discrimination. In light of this political support, which shows that most Americans do not consider the death penalty to be "cruel and extraordinary," the Supreme Court declared in 1976 that the death penalty could be constitutionally carried out according to an approved procedure.

Since then, the Supreme Court has sought to monitor and regulate how the death penalty is carried out in the states and has intervened to make it constitutional. As a result, a complex process of appeals and post-conviction reconsideration has been created in federal and state courts, resulting in significant expense, delay and uncertainty. This complex system, which arises from the interaction between local democratic processes and the federal constitution, seems to be unpopular in the United States, regardless of whether one supports the death penalty or not.

Different democracies, different legislative processes

The United States, which helped lead the movement to reform the death penalty, lagged behind the movement to abolish the death penalty.

This contradiction is caused by the way in which these laws are usually repealed. In countries where the death penalty has been removed from the statute, this has been achieved through top-down reforms in countries that believe that the death penalty is no longer necessary or justified. In many cases, the death penalty has been abolished, even though the majority of citizens still support it. The abolition of the death penalty in most Western countries (and others) and not in the United States is not due to differences in public attitudes — brutal murders are unpopular anywhere — but because of differences in political mechanisms.

Local powers, local laws

The United States Congress, unlike the European Congress, lacks the legal authority to implement the national abolition of the death penalty, because the United States Constitution vests the legislative power of criminal law in the states. Each of the 50 states (plus the federal *** and U.S. military) must abolish their own death penalty one by one. This means that the abolition of the death penalty at the national level requires not a blanket abolition act (as in other countries), but 52 different bills. To date, 25 states have abolished their death sentences at various times, but 10 states have since reinstated the death penalty.

Congress also lacks the political power to force repeal, as do legislators in many states. The U.S. polity makes it harder for elected officials than in other countries to act in a way that doesn't follow the choices of the majority of citizens. Short election cycles, candidate elections, weak political parties and the money needed to campaign – all of this makes it difficult for elected officials to stay away from the wishes of ordinary voters. The death penalty is still enshrined in the laws of 35 states, which can be interpreted as the responsibility of the majority of local public opinion – a system of political representation that ensures that this will is reflected in state law and local practice.

Liberalism, democracy, and the death penalty

Liberal democracies – unlike totalitarian or theocratic states – work to limit *** rights, protecting individual freedoms. As a result, the death penalty was not used much and eventually disappeared in most democracies. But each country itself has to find a viable balance between "liberalism" and "democracy".