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Is the Death Penalty Hanging by a Thread?

Astute reader federalist, having taken the Astronomy Quiz, wonders whether the unhappy truth is that the death penalty is hanging by a thread.

I understand his anxiety, but I think it misplaced for several reasons.
First, the pace of executions is picking up.  There have been eight executions in the first seven weeks of this year.  If that pace just stays the same, we will have more executions in 2014 than at any time in the last decade.  Even if it somewhat slackens, we are likely to have more executions than in the last several years.

Second, as long as public support remains at or above 60%, we will continue to have the death penalty.  Support was at about 45% in 1972, when, by a one-vote margin and with no agreed-upon theory, the Supreme Court struck it down.  As long as support stays even roughly where it is, the death penalty is safe.  The Court really does follow the election returns (see, e.g., its gay marriage rulings).

Third, the kind of crimes that result in the death penalty are widely and graphically displayed now, in the age of the Internet, as never before.  The pictures of the bloodbath that was the Boston Marathon bombing present an unarguable case that some crimes are simply too horrible to think that anything less than the death penalty even approaches justice.

Fourth, there are very likely at least six votes on the Court to reject a broad challenge.  The Chief, Scalia, Thomas and Alito would seem to be sure bets. Kennedy looks down on the death penalty (see, e.g., Part V of his opinion for the Court in Kennedy v. Louisiana), and is willing to nibble away at it, but has too much respect for precedent to hold it unconstitutional.  And Justice Kagan, at her confirmation hearing, said specifically that she did not share the views of Justice Marshall (for whom she clerked) that the death penalty is in all circumstances forbidden, and noted that, in her view, it was "settled precedent going forward."

Even Barack Obama has said he supports the DP in some circumstances, and this Court is not getting to the left of the President on this issue.

Fifth, the movement in the states to abolish it has pretty much run its course.  It got the low-hanging fruit (blue states like Connecticut, Maryland, New Jersey and Illinois  --  in all of which the death penalty was virtually extinct anyway), but it conspicuously failed in California, and the rest of the country is going to be considerably tougher sledding.  

This is true now, and will be more true in the future; the Democrats are no longer hoping for gains this November, and instead are hoping just to minimize losses. What that means is that state legislatures will be even less likely than they are now to go along with abolition.  The more likely course, as Kent has noted, is that they will undertake reforms to squeeze some of the unconscionable delay out of the system, and thus expedite the carrying out of long-ago imposed sentences.


Good multifaceted analysis. But, in my opinion, the thread (or threads) on Kennedy's robe is all that stands between the DP and its demise. If states, like Florida, would just stop pushing the envelope (by, for example, categorically deeming all murderers with IQs above 70 not mentally retarded for purpose of Atkins) the DP will stand a much better chance of survival as long as Kennedy holds the trump card.

I am not sure what sort of rationale is percolating to abolish from a constitutional peprobably2ctctive that hasn't already been tried. So absent court lineup change I doubt much threat there.

I think the biggest threats are the so called cost argument and the innocent person getting executed. The cost argument can be overcome by illustrating positive effects on crime rates, specific deterrence and some of the streamlining proposals out there.

The discovery of a factually innocent execution is probably more problematic.... It is probably impossible to postulate an error rate as no error has yet been discovered. I know it exists but it might be very very low....

The comment is tendentious. What--because Florida decides to take the Supreme Court at its word--no one gets to have the death penalty? Given the weak underpinnings of Atkins to start with, one could hardly blame states for ensuring that Atkins' damage is limited. Additionally, what would it say about the Supreme Court if it were to ban the death penalty for states "pushing the envelope." If the Court (or more accurately, a majority thereof) is of a mind to do this, then it certainly wouldn't speak very well of the Court.

What is amazing to me--the death penalty is unquestionably constitutional--the Constitution itself refers to "capital crimes." If the Court is to make the death penalty per se illegal, it will have lost legitimacy.


There are stronger points for the death penalty, on the cost issue and on innocents, when fully reviewed.

The problem, as always, seems to be the media.

Please review:


The Innocent Frauds: Standard Anti Death Penalty Strategy

99.7% of murderers tell us "Give me life, not execution"

Saving Costs with The Death Penalty

Dudley --

Thanks for chiming in with those useful sources.

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