Another year ends and offers new evidence of progress in the effort to abolish America’s death penalty. Amid this progress, we still see disturbing examples of state killing. It remains incompatible with our most important political and legal values, but one can take some comfort from the significant erosion of capital punishment’s hold in this country.
It now seems safe to say that the death penalty is in retreat: the United States is on the road to abolition. And it is not too early to begin thinking about what it will be like to live in a country without the death penalty and to anticipate and plan for the battles that may ensue when it is ended.
This may seem a bit premature, like spiking the football in celebration of a touchdown when you are only on the five-yard line. Indeed, seeing the depths to which anti-abortion foes went this year in their efforts to undo reproductive rights for women is a reminder that hard-won rights and freedoms continually face astonishing threats. Death penalty abolitionists will not be able to let down their guard even when the death penalty is ended. They must begin now to imagine what they will have to do to protect their coming victory.
The start of 2021 did not make it seem like this year would be a good time to begin looking over the horizon and anticipating the death penalty’s demise.
In January, on the cusp of the inauguration of a new president, the Trump administration carried out several executions to complete its unprecedented execution spree. In the space of three days, it ended the lives of Lisa Montgomery, Corey Johnson, and Dustin Higgs.
But, according to the Death Penalty Information Center, from January to May, no one was executed in the United States, and over the remaining months just 8 other people have been put to death. 2021’s total of 11 executions is the fewest in any year since 1988. Death sentences were also way down, and the population of the nation’s death rows continued to decline.
In March, Virginia became the first former Confederate state to end capital punishment and the eleventh state to do so since 2007.
More states have abolished the death penalty in the last 15 years than in any comparable period in American history.
Abolition’s success has been propelled by many factors, not the least of which has been steady documentation of the death penalty’s unfairness, inequity, and cruelty. An important example is provided in the study published in the fall issue of the Columbia Human Rights Law Review by Cornell Law Professors Joseph Margulies, John Blume, and Sheri Johnson. They show that since 1977 one in seven inmates put to death in the U.S. had cognizable legal claims that made their executions unconstitutional at the time they were carried out.
While such shocking statistics add fuel to the effort to end the death penalty, they cannot guarantee that there will be no backlash after abolition succeeds. Indeed, abolitionists have good reason to fear such a reaction given what happened several decades ago in the wake of the United States Supreme Court’s 1972 decision in Furman v. Georgia. Furman declared the death penalty unconstitutional because of the arbitrary and discriminatory manner in which it was applied.
At the time, some abolitionists thought the decision marked the end of capital punishment in the United States. Jack Greenberg of the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund proclaimed that “there will no longer be any more capital punishment in the United States.”
Another commentator somewhat less confidently suggested that “[t]he Supreme Court decision outlawing the death penalty as it is now imposed leaves the door open for Congress or the states to write new laws that would be considered valid. But the door isn’t open very much.”
Both predictions proved wrong.
As Maurice Chammah of the Marshall Project notes, “[T]he backlash to Furman was swift and furious, as state legislatures scrambled to rewrite their laws to satisfy the [C]ourt’s concern that the punishment was arbitrary.” It was only a matter of days after the Furman decision before five states announced that they intended to reinstate the death penalty. By May 1973, thirteen states had reinstated the death penalty and by 1976 that number increased to thirty-five.
Backlash also can be registered in more nuanced ways as an issue is reframed after a decision has been made. Politicians market new slogans to leverage issues like the death penalty for political gain. New organizations are formed to try to change the public mood and motivate efforts to restore a previous status quo.
And given the depth of political polarization in this country it would not be surprising to see the death penalty’s abolition folded into a narrative that will describe it as another attack on traditional American values and ways of life.
Of course, backlash after a gradual state-by-state abolitionist of the death penalty may not follow the pattern of reactions that followed Roe v. Wade and Furman. We are unlikely to see capital punishment ended in the U.S. by Supreme Court decision, particularly the current Court. Perhaps allowing people to come to a democratic decision is more sustainable than the Supreme Court weighing in on such a contentious issue. Political decisions on controversial issues may have greater legitimacy than judicial decisions.
Reactions to such decisions may produce acquiescence not backlash.
As Supreme Court Justice Louis Brandeis famously observed, “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” Government actions reframe and reshape the social landscape and public perceptions. Whether immediately or after some period of time, opinion leaders, politicians, and the public often fall in line.
This was the case in various European nations after they abolished capital punishment decisions. For example, major parties in the United Kingdom collaborated in ending the death penalty by an act of Parliament in 1965. At the time, 65.5% of Britons wished to retain it. But over time, the British public learned to live without capital punishment, and no major party has tried to reinstate the practice of capital punishment since the 1990s.
Unlike the UK, the United States is currently so bitterly divided, and resentment of progressive change is so deep, that it takes little for politicians to seize on a form of social change and portray it as the end of all that is good. In this context, acquiescence cannot be guaranteed.
Getting the public to go along with the abolition of capital punishment will take careful planning and preparing the groundwork for what is to come.
Acquiescence may be easier to achieve when, as has been true in several of the post-2007 abolitions. abolition of the death penalty comes after prolonged periods of investigation by study commissions, political back and forth, and sometimes moratoria imposed by a governor. Such political incrementalism allows for gradual adjustment and adaptation by both sides. In fact, only in Nebraska has a post-2007 abolition been reversed and the death penalty restored.
Opponents of the death penalty at the state and federal level would be well advised to invest time and resources in tracking and learning lessons from what has happened after states abolished it over the last 15 years. It is not too early to prepare for what may be necessary to ensure that the death penalty, once it is gone everywhere in this country, never returns.