On August 2, Pope Francis announced a striking change to the Catechism of the Catholic Church, with new language that stated, “The death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.” The Pope vowed that the Church will “work with determination for its abolition worldwide”—building on a moral commitment his recent predecessors had already begun to craft. Commentary on the Pope’s announcement added that “ending the life of a criminal as punishment for a crime is inadmissible because it attacks . . . a dignity that is not lost even after having committed the most serious crimes.”
In June 2018, the Pew Research Center disclosed that American support for the death penalty had ticked up significantly for the first time in more than 20 years. In 2016 only 49 percent of all Americans had favored the death penalty for certain crimes (down from 78 percent in 1996), but now 54 percent signaled their support in some cases of murder (with 39 percent opposed). To be sure, a one-year reversal may prove to be a fluke (though it is interesting that not even the terrorist attack of 9/11 had disrupted the trend), but there are reasons to take it seriously.1
Putting these two developments together yields a striking disjuncture, with unprecedented moral disapproval from one major religious institution contrasted with apparent regression in a leading Western nation. The rough coincidence in time serves as a reminder of how fierce polarities over the death penalty can be, not just today but over the past 250 years. Both sides of the argument have a number of well-established themes in their arsenal, which are bound to be re-hashed in the current debate.
This is more than an abstract philosophy question, however. Rising American support for the death penalty raises, in the minds of some observers, the distinct possibility that we as a nation have somehow fallen away from civilized morality—not just by papal standards but in contrast to established practice in many European and Latin American societies as well. (We are one of only 51 nations worldwide that currently allow the penalty.) And while the recent shift in polling trends has not yet been accompanied by a major increase in the actual administration of capital punishment, 2017 did see a slight uptick compared to the previous year: 23 executions instead of 20, though still well below the recent peak of 98 two decades ago. That number includes some states that had seemed to be moving away from the death penalty. Nebraska recently carried out its first execution after voters overturned a decades-old ban on capital punishment in 2016. Tennessee, which had not executed a criminal since 2009, put a convicted murderer to death in August and planned two more executions before the end of the year. Commenting on the recent event, an op-ed in the New York Times noted serious doubts about the criminal’s mental competence and ongoing concern over the pain caused by the drugs administered in the execution: “We are not a civilized nation. We are not even close.”
U.S. Death Penalty Rates2
|1960-76 (banned outright nationally 1972-76)||12|
It’s an opportune moment both to review the issues in the longstanding controversy and explore its current status in the United States. Does the death penalty indeed provide a good measure of civilization, and are Americans in fact failing to measure up? Are we, that is, facing yet another moral crisis?
Debate over the death penalty effectively began in the 18th century, thanks to the reevaluation of the individual promoted by the Enlightenment and the new willingness to subject established social traditions to critical review. To be sure, a first blow had been struck by Pennsylvania Quakers, whose Great Law of 1682 restricted capital punishment to a mere handful of crimes—an innovation quickly set aside by the British overlords. But it was Enlightenment intellectuals who developed an absolutist overall case against the death penalty, winning surprisingly rapid, if somewhat limited, public response.
Cesare Beccaria set the ball in motion in 1764 with a quickly translated essay on crime and punishment.3 Beccaria railed against the death penalty on two now-classic grounds: First, it was an affront to innate human dignity and a blot on the conscience of any society that supported it; and second, it was a practical failure, more likely to encourage crime than to suppress it. While Beccaria did not emphasize the third common argument, this was quickly introduced by contemporaries like Jeremy Bentham: Of all possible punishments, death was the only one that could not be reversed if a victim was discovered to be innocent.
Discussion of the death penalty as part of an unprecedented effort to define “cruel and unusual punishments” was further bolstered in the late 18th century by growing confidence that enlightened societies had a far better alternative in confronting major crime: the modern prison, where rehabilitation might occur. American reformers became particularly proud of their prison innovations, just as they took a lead in warning against (unspecified) excessive punishments in the Eighth Amendment to the Constitution. (And, though disillusioned, we still like prisons a lot.)
The humanitarian attacks on the death penalty had several concrete results, stretching into the 19th century across the Western world, including both Americas.4 First, they encouraged an impressive effort to reduce the number of crimes subject to capital punishment. Britain cut its list of death penalty crimes to 230 by 1825, and to a mere four by 1861. Religious crimes, including heresy and witchcraft, fell off the list. So did thefts and forgeries. Ultimately, only certain types of murders and treason were believed to require such an extreme response.5
A second result was that Western societies increasingly decided that, when it was administered, the death penalty should be imposed away from public view. Traditionally, public executions had been encouraged for their deterrent effect. Now, reformers worried that public displays would coarsen, not instruct, the crowd, and in any event were too barbaric for respectable viewers.6
Third: Increased efforts were made to reduce the suffering involved in the administration of death itself. The French famously adopted the guillotine in hopes of ensuring a less painful end. Later, Americans waxed enthusiastic over the electric chair for precisely the same reasons, and ultimately would turn toward chemical cocktails. Firing squads, traditional beheadings, and even hanging fell victim to the new sensibilities.
Finally, the execution of children was reconsidered, albeit hesitantly. In Britain, for example, a series of laws from 1908 onward progressively ended the death penalty for any crime committed when the perpetrator was under 18.
These were serious and sweeping changes in the ways that death was accepted as an appropriate response to crime. But of course they could also be considered a glass half empty, in the sense that they made the residual administration of capital punishment seem more acceptable and less barbaric—a situation that will sound familiar to many Americans today. Indeed, few societies took the anti-capital punishment argument to its logical conclusion, carving out exemptions and special cases that were clearly inconsistent with Beccarian orthodoxy. Michigan led the Western world by abolishing the penalty in 1847 (except for treason), though other states hesitated. Portugal did the same in 1867, and reformers delight in noting that Portugal’s per capita murder rate now stands at a mere 25 percent of American levels.7 The Netherlands joined the small parade in 1870. But sweeping prohibition was rare even in the Scandinavian countries, which only began to move toward abolition during the interwar years.
Far more common was a willingness to combine reform with continued administration of the death penalty against particularly serious crimes; or, as in countries like Austria, to abolish capital punishment only to reinstate it. Several American states moved against capital punishment amid the wave of Progressive reform in the early 20th century but soon relapsed amid the political and economic stresses of the interwar period. Then as today, support for the death penalty fluctuated, never quite achieving a stable consensus.
This suggests it is inherently difficult to abandon traditional responses to serious crimes, and not just in the United States or the Western orbit. Japan, for example, clings to the penalty despite a strikingly low crime rate, in the belief that it is an essential safeguard. Revenge, that oldest of human motivations to violence, continues to guide responses to some of the most unspeakable crimes (most obviously, treason and particularly gruesome murders). So does a deep belief—against a great deal of objective evidence—that without the death penalty murder rates would soar; it’s hard to shake off some reliance on an ultimate deterrence when major crime persists. This is why, even after more than two centuries of earnest argument and despite, or because of, some really significant reforms, the death penalty hangs on.
The United States, of course, has participated both in the basic debate and in most of the major reform moves as a full part of Western society—often, indeed, in a leadership role. From the 18th century onward, Americans have produced some of the most persuasive arguments in favor of abolition. Individual states, like Pennsylvania or Michigan, have often beat European counterparts to the punch, at least for a time. The most obvious distinctions in levels of civilization between the United States and other parts of the West—if the death penalty is a measure—did not clearly emerge before the last half century. Our sins, if sins they are, may be more recent than we imagine.
But even here, a couple cautions are in order. Inevitably, the first involves race. Americans have clearly been particularly willing to subject certain groups to capital punishment when they violate racial norms. Thus African Americans accused of violence against whites remain particularly likely to be put to death either judicially or, until the 1950s, extrajudicially. The second caution may be even more revealing. While American legislation on capital punishment from the late 19th to 20th century looks fairly conventional with respect to other Western nations, the rates of execution were often massively higher. During the 1940s, for example, over a thousand criminals were legally put to death in the United States; in contrast, during the whole period 1900-59, only 632 people were executed in all of England and Wales. Similar gaps, on a per capita basis, separate the United States and France in the first half of the 20th century. Levels of reliance on the death penalty as a response to crimes or fears of crime in the United States almost certainly diverged from the norm well before our own time, and this raises a disquieting possibility: Perhaps we have been less civilized all along.8
The most blatant divides between the United States and the rest of the West with regard to capital punishment opened up in the decades after World War II. But, as with so many aspects of the death penalty, some distinctions prove more apparent than real. American reforms, though sometimes more in deed than word, have often been significant, whereas European enlightenment has more than once proved to be skin deep. Maybe we are (slightly) more civilized than we imagine.
The deaths associated with World War II and the Holocaust clearly shocked Europeans and jolted certain groups into renewed action, in ways that simply did not apply to the United States. West Germany, for example, abolished the death penalty in 1947, in response to its own troubled past. More and more European states began to follow a similar pattern, reflecting the extent to which old arguments against the death penalty—its barbarity and ineffectiveness—were gaining new resonance in light of recent experience. This trend would ultimately culminate in the uniform abolition of the death penalty throughout the European Union and beyond, leaving Belarus as the only European country where capital punishment remains legal. Even Russia has joined the parade, at least officially.9
In contrast, the United States remained strongly wedded to the death penalty into the 1990s, except for a brief period in the 1970s when a Supreme Court ruling suspended all executions. To be sure, the same sentiments that moved Europe after World War II had some resonance in America, as the use of the death penalty steadily declined from the 1950s to the mid-1970s. But from 1977-99 a kind of American exceptionalism took hold, with annual rates of execution rising steadily.10 After 2000, however, both public opinion and the actions of many individual states turned against capital punishment yet again, bringing American policies and beliefs more in line with other Western nations, albeit belatedly and less completely.
The mounting disparities created abundant opportunities for Europeans (including several popes) to berate American backwardness, pleading, usually in vain, for clemency in individual cases. And in one important instance—subjecting adolescent criminals to the death penalty—the United States defied virtually the whole world, becoming literally the only country not to sign onto the charter of children’s rights which included a prohibition on capital punishment (though the Supreme Court did outlaw the juvenile death penalty in a 2005 ruling). There is no question that, overall, the United States increasingly stood apart from an otherwise Western-wide commitment to not just limit the death penalty but abolish it outright.
That commitment was not always democratic, however. The European surge against the death penalty reflected not only revulsion against past excess, but an interesting gap between elites and public opinion. In virtually every new case of abolition, the first move occurred against the wishes of the majority, and for some time thereafter polls reflected a preference for restoration. In 1949, for example, 55 percent of West Germans supported a return to capital punishment. A majority of the French held similar views as recently as 1990. European governments, including the notoriously remote regime of the European Union, were able to bypass majority resistance in ways that many American leaders could not or would not. Cultural tolerance for the death penalty, in other words, did not vary as much as the policies suggested.11
Except that, in one final twist, once European countries did abolish the death penalty, public opinion almost always evolved toward fuller acceptance. Pride in this accomplishment, coupled with the recognition that crime rates did not soar in the absence of capital punishment, further distinguished Europe from the United States. By 2000, for example, only 25 percent of all West Germans (and 39 percent of those of East German background) now hoped that the death penalty might be restored. But because Americans had no experience with a criminal justice system devoid of capital punishment, they continued to see the death penalty as a vital corrective, which meant abolition efforts in the United States stalled.
So what about the recent uptick in American support for capital punishment? What does it suggest about the fragility of our civilization?
It’s not hard to be gloomy, particularly because the uptick coincides with other trends that understandably worry many. Divisions over capital punishment correlate with many other dimensions of polarization—and while most of this is not really new, it will take on new meaning should the death penalty reemerge as a subject of national debate.
Republicans overwhelmingly support the death penalty; Democrats do not. Not all blue states are among the 19 that outlaw capital punishment, but most are. Evangelicals fiercely defend capital punishment, and Protestants generally offer majority support. Catholics waver a bit, depending on how the question is posed; sometimes, a small majority are in favor for particularly horrible crimes. African Americans, Hispanics and other minorities are opposed. College educated Americans differ from those with less education (though the biggest difference isolates those with a postgraduate degree—56 percent are opposed). Women are almost evenly divided, whereas a majority of men are in favor; young people are slightly less supportive than old. The whole jigsaw eerily recalls the larger divisions over Trumpism.
And surely the 2018 uptick reflects the emotional pitch of our time as well, though with one puzzling and possibly even more troubling twist. Those who are roused by fears of crime and attacks may be doubling down on the death penalty, even as those with other priorities register their opposition. We have a long national history of turning toward the death penalty when stirred by real or imagined signs of growing crime rates; this was a major factor in the differences between American and European attitudes toward capital punishment by the 1980s.12 And support for the death penalty has a long and sordid connection with racial views as well. In the current climate, then, the growing polarization around capital punishment is hardly surprising. The one unexpected factor has been the striking increase of support for the death penalty on the part of independents (an 8 percent increase, to 52 percent). Is a move toward capital punishment among non-conservatives a sign that America as a whole is becoming more receptive to crime and immigration alarmism?
We may not need to sound the alarm bells too loudly. Levels of support for capital punishment remain far lower than they were two decades ago—even among Republicans. The use of capital punishment has declined massively in the United States over the past 60-plus years, and noticeably over the past two decades. There are few signs, as yet, that any of the abolitionist states are seeking to change course. While most Americans still accept capital punishment as morally valid, a considerable majority also recognizes that it does not clearly deter crime and may well harm innocent victims. And the increasing interest in sentencing reform complicates the current picture as well. America does not yet seem hell-bent on a return to the bad old days, though the situation certainly bears watching.
Comparative data always provides a mixture of anxiety and solace. To the extent that populist winds include some renewed support for the death penalty, the United States may not be alone. Among supporters of Brexit in the United Kingdom, for example, 53 percent want restoration of capital punishment, slightly more than advocate a return of corporal punishment in the schools. Similar currents may affect opinion in other European countries as well. But of course the overall public opinion figures remain quite different—Brexiters alone match American figures, which means the full UK patterns are still far more opposed. Whether this all adds up to a decisive challenge to America’s moral aspirations (if such aspirations persist) is not an easy call.
One can only respect those deeply committed to a continued fight against the death penalty, and the moral anguish that American ambivalence must cause. We remain less merciful, less civilized than our European cousins across the Atlantic, despite the fact that their enlightenment is more recent and complicated than we sometimes imagine. Current trends are not encouraging, though we need a few more years to judge with greater certainty.
Yet complexity should not stifle concern. We have, after all, a fairly recent national experience with a period of death penalty reduction followed by a resurgence. The increased support for and implementation of capital punishment from the late 1970s involved, among other things: a response to a real increase in serious crime; fears of crime that ultimately went well beyond reality (particularly by the 1990s); manipulation by campaigning politicians, eager to exaggerate the threat of crime; and particular urgency by some states, most obviously in the South, to resist any move toward a national ban.13 Some of these pathologies seem to have resurfaced today, most acutely in the form of Donald Trump, who has gone out of his way to exaggerate what remains a relatively minor spike in violent crime. Understanding the history of the death penalty and the real strides that have been made throughout the West should of course temper our moral scaremongering. There is much to celebrate in this history, even if it is imperfect and incomplete. But there are also new reasons to be alert.
With 18 already by mid-August, 2018 levels will almost surely rise yet again.
Michael Kronenwetter, Capital Punishment: A Reference Handbook (ABC-CLIO, 2001). See also the excellent statistical and policy collections from the Death Penalty Information Center, including “Facts about the Death Penalty,” August 14, 2018.
Cesare Beccaria with Aaron Thomas, ed., On Crimes and Punishments and Other Writings (University of Toronto Press, 2008).
Frank Hartun, “Trends in the Use of Capital Punishment,” Annals of the American Academy of Political and Social Science (November 1952). Pieter Spierenberg, The Spectacle of Suffering; Executions and the Evolution of Repression(Cambridge University Press, 1984). Juergen Martshukat, “Nineteenth-Century Executions as Performances of Law, Death, and Civilization,” in Austin Sarat and Christian Boulanger, eds., The Cultural Lives of Capital Punishment (Stanford University Press, 2005). Steven Wilf, “Anatomy and Punishment in late Eighteenth-Century New York,” Journal of Social History (Spring 1989).
V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770-1868 (Oxford University Press, 1994).
Peter N. Stearns, Revolutions in Sorrow: The American Experience of Death in Global Perspective (Paradigm Publishers, 2007), pp. 69-74.
Correlations between death penalty abolition and murder rates are complex. But it is broadly true that ending the death penalty normally correlates to relatively low murder rates (though cause and effect relations are difficult to establish): This is true for most of contemporary European history but also the rates, both historically and currently, in the 19 abolitionist American states.
Hugo Adam Beday, ed., The Death Penalty in America: Current Controversies (Oxford University Press, 1998); Robert M. Bohm, DeathQuest: An Introduction to the Theory and Practice of Capital Punishment in the United States (Routledge, 2017).
Tanja Kleinsorge and Barbara Zatlokal, eds., The Death Penalty: Abolition in Europe(Council of Europe Publishing, 1999); EU Memorandum at the 54th United Nations General Assembly; David Jacobs and Jason T. Carmichael, “The Political Sociology of the Death Penalty,” American Sociological Review (February 2002); Francisco Panizza, “Human Rights: Global Culture and Social Fragmentation,” Bulletin of Latin American Research (May 1993).
Kronenwetter, Capital Punishment.
Amnesty International, “Facts and Figures on the Death Penalty” (September 1997); Death Penalty Information Center, “Gradual Decline in Support for the Death Penalty in Europe;” Death penalty around the world spreadsheet.
Drew Desilver, “America’s death row population is shrinking,” Pew Research Center, April 22, 2015. Barry Glassner, The Culture of Fear: Why Americans Are Afraid of the Wrong Things: Crime, Drugs, Minorities, Teen Moms, Killer Kids, Mutant Microbes, Plane Crashes, Road Rage, and So Much More (Basic Books, 2010). Glassner’s analysis shows that American fears on crime recurrently outstrip reality, particularly through the 1990s, but still true among some groups today.
Add this to the renewed confidence some states are showing for the poisons now available—just as adjustments by 1977 had encouraged courts to decide that the death penalty could be administered in ways that were not “cruel and unusual.”