The United States has been steadily repealing the death penalty since the turn of the millennium almost entirely under the radar.
Why are so many Americans totally unaware of the bipartisan trend against capital punishment? Predominately because it’s a policy change that’s been occurring at the state level.
The U.S. Supreme Court overturned the death penalty in the 1970’s when it found that carrying out the death penalty violated the Eight Amendment’s protection against cruel and unusual punishment. The underlying reason for this finding was that the penalty was so arbitrarily applied that it was unusual in nature.
The ban lasted only a few years, however, as most states crafted new parameters for its usage meant to guard against this problem moving forward. For the record, it hasn’t worked; the death penalty is still profoundly arbitrary. Just one example: all executions since reinstatement have still stemmed from only 16 percent of the nation’s counties. But the court hasn’t shown interest in picking it up again.
What the repeal movement learned from that era is important. While a court win could more quickly rid the country of capital punishment, the real work of educating the American people about the failures of the death penalty must be completed for the death penalty to ultimately die. Hearts and minds must be changed in the states, and really, the state level is where it is appropriate that these decisions be made. And so that is where opponents have focused their attention and resources over the past couple of decades. And we’ve been winning.
A robust 25 states have gotten rid of their death penalty systems. Twenty-one repealed the sentence through their legislatures, and four others have moratoriums put in place by either their judicial or executive branches. Of the 25 states that still have capital punishment on the books, a third have not used it in a decade or more.
And there’s more. Last year was the fourth in a row that the country carried out fewer than 30 executions. All of those 25 executions came from only eight states, and more than half were out of Texas alone. So usage is not only down, it’s very heavily concentrated. That’s a stark change in course since the 98 people executed at the height of the country’s usage in 1999. And to top it off, new death sentences are also down 60 percent since 2000.
The death penalty is dying. Good riddance.
Globally, we’re behind as the only western country to still carry out the practice. And we join pretty abysmal company when it comes to countries that carry out the most executions — last year the top ten included the likes of Iraq, Saudi Arabia, Iran, China, and … us.
But trends give every indication that we will continue to abandon the practice.
In 2019, Republicans sponsored death penalty-repeal bills in 11 states. One of those campaigns was successful in New Hampshire, and several of the other states seem positioned to see success in the coming year or two.
Wyoming, which fell only four votes shy of passing repeal outright this year, will certainly see another push. Their 2020 session is a short budget year, meaning the obstacles to get bills introduced are much higher than a normal year. But whether it’s 2020 or 2021, it seems certain the Cowboy State will see success sooner than later.
Utah is another red state that continues to elevate the issue of repeal. Many of their conservative leaders have shown support for a bill, and the fiscal arguments against the death penalty are gaining traction in a truly conservative state.
And in Colorado, an increasingly purple legislature seems primed to move a bill in 2020 or 2021 as well.
Joining those three are states like Louisiana and Ohio, where difficulties over obtaining lethal injection drugs continues to stall execution dates. In both states, key Republican leaders have publicly expressed their growing disenchantment with the system.
In direct contrast to all of these developments is the federal government, where the Justice Department has announced its intent to re-start executions after a 16-year hiatus. In response to this, my organization, Conservatives Concerned About the Death Penalty, released its statement of support for ending capital punishment this week. More than 250 conservative and libertarian leaders in the states have signed on.
Considering the lack of a deterrent effect produced by the death penalty, the mounting numbers of innocence discovered in the system, and the sunk costs of defending this system, states that continue to use it will increasingly be seen as foolish outliers. The state-driven repeal movement is unlikely to stay under the radar much longer.
Hannah Cox is the National Manager of Conservatives Concerned About the Death Penalty. Hannah was previously Director of Outreach for the Beacon Center of Tennessee, a free-market think tank. Prior to that, she was Director of Development for the Tennessee Firearms Association and a policy advocate for the National Alliance on Mental Illness. To read more of her reports — Click Here Now.
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