The Death of the Death Penalty in the US: The Effect of Judicial Intervention and Societal Shifts

by Chris McCay, SS Law and French

Introduction

The US death penalty has long withstood the test of time and like most countries with a death penalty, has become dependent on the deterrent that the punishment creates. This dependence on ‘fear’, is intertwined with the structure of the US criminal justice system. However, we can observe a recent decline in the use of the death penalty. The ultimate cause of the decline, which itself has several originating factors, is the realisation that the death penalty is a remnant of a system which has long passed its usefulness The materialisation of this opposition is detailed in Furman v Georgia This article will discuss the main causes of the decline, as well as the actual, and potential, effect that judicial intervention has on the continued use of the death penalty as a form of punishment.

I. The Principal Cause of the Decline: the Evolution of Societal Values

I contend that the main reason why the use of the death penalty in the US has decreased is due to a change in societal values Specifically, I propose that as the political ideology of society has evolved from a retributionist one to one that has become fixated with protection of rights, the presence of the US death penalty has served as a reminder of a past approach that no longer works.

The Evolution of Criminal Law

Cohen, a judicial philosopher and legal scholar of the University of Chicago, proposed that in order for criminal law to protect public morality, it must be able to evolve to match public values The question of what is a crime, and thus its punishment, is therefore ultimately a social construct. To illustrate, it was not until 2003 that homosexuality was definitively legalised in the US after the case of Lawrence v Texas. The principal reason, as determined by Judge Kennedy, was that it would be archaic to continue to criminalise something that society no longer deemed to be a crime Putting this in the context of the death penalty, I propose that the general public in the US has moved away from the brutality of the death penalty. The general idea at present, in a point made by Garett (the L. Neil Williams, Jr., Professor of Law at Duke University School of Law), is that there is no justification that allows the state to intervene to such an extent as to end one’s life. When the US Judicial System accepted, in the case of Furman v Georgia, that the death penalty had long passed its use, it created a society wherein there is no paradoxical disconnect between those who define punishments of crime, and those who that definition will affect

It is no surprise that this change has had a direct impact on the reduction of juries imposing the death penalty. The case of Hurst v Florida reaffirms that the jury alone must impose the death penalty. Ultimately, if the jurors on the jury no longer support the idea of the death penalty, it only makes sense that the rate of the use of the death penalty declines

Ultimately, if the jurors on the jury no longer support the idea of the death penalty, it only makes sense that the rate of the use of the death penalty declines.

The Practical Reasons Behind the Decline in the Use of the US Death Penalty

In furthering the idea that societal values have been the main cause behind the decrease in the use of the death penalty in the US, we must discuss the main reason that has caused this change. The primary reason is that the effectiveness of the death penalty, the main source of its support, has been invalidated –the idea that the death penalty reduces costs for taxpayers is a myth. For example, the Nevada State Legislature made it public knowledge that the pro- cess of imposing the death penalty costs on average $1 26 million, as opposed to non-death penalty cases of a similar nature which cost on average $740000 (Financial Facts About the Death Penalty, Nevada State Legislature 2017). We must also consider that this process may be carried out, costing millions, only for the death penalty to be replaced by life imprisonment at the end. This illusion can be said to have been constructed as a scaremongering tactic; a political tool to increase support for the politicians who support its use

II. The Influence of Judicial Decisions on the Decrease, and Potential Removal, of the US Death Penalty

The general disillusionment towards the death penalty in the US has made its way to the Supreme Court. The fight against the death penalty, from the viewpoint of the general public’s opposition, can only go so far as people allow it A 2021 study by Pew Research Centre showed that 38-40%, up from 31% in 2011, of Americans were opposed to the death penalty in all forms - but this doesn’t necessarily correlate to the idea that they consider this when casting their votes. The idea of die-hard Republicans, or indeed Democrats, supersedes any idea of progression – essentially, people will vote for the name of the party, more so than what they actually want. A solution to this problem is to bring it to the independent courts, that should ignore politics The US Supreme Court in the Furman judgement introduced the biggest barrier to the use of the death penalty yet

The Effect of the Furman Judgement

The Court in Furman ruled that the death penalty was an arbitrary punishment and thus unconstitutional under the 8th Amendment of the US Constitution. There was a positive legal effect introduced after Furman that meant that in order to reinstate the death penalty, the US States had to remove the arbitrary elements of the penalty in order to satisfy the 8th amendment of the US Constitution The visible effect of this case was a de facto moratorium of the death penalty in the US, which lasted 4 years. While, arguably, the effects of this case were short lived, it resulted in over 630 death sentences being vacated in the US. The precedent of this case is revolutionary and supports the idea that a judicial challenge to the

Use Of The Death Penalty Is The Best Way To Abolish It

For the first time, the states no longer have unilateral authority when it comes to implementing the death penalty. I propose that in using the precedent set in this case, it is likely that there will be a new case that implements even stricter requirements to use the death penalty, to the point where the restrictions in place render it so inconvenient as to no longer be viable. While this type of case may be far off, considering the current politicisation of the US Justice System, I contend that one could use this platform to advance opposition to the death penalty. As mentioned, Supreme Court cases are highly publicised, much more so than any protest by normal citizens, meaning that taking this opposition to the judicial system of the US is a more efficient way than simply waiting for political change that may never come. In the 50 years following Furman, 14 states have abolished the death penalty, and 3 more have seen the introduction of gubernatorial moratoriums Furman introduced the idea that it is possible to limit its usage It is submitted that if we have a similar case to Furman, one would expect it to have a similar effect, and a complete abolition of the death penalty could be realised. It appears that judicial intervention is a more suitable method to remove the death penalty than political intervention.

Conclusion:

The decrease in the use of the death penalty in the US can be definitively linked to the evolution of societal values, and the effect of this evolution has made footing in the Supreme Court It makes sense if we consider that, ultimately, if the US populace had no issue with the use of the death penalty, there would be no discussion on the point, meaning that any other factors that may decrease support would not even be highlighted. Therefore, considering that a major proportion of the public is becoming increasingly disillusioned, we are able to see real opposition towards the use of the death penalty in the US I propose that a challenge similar to the challenge seen in Furman is the best way to efficiently end the use of the death penalty as the Supreme Court allows for actual acknowledgment and promotion of the problem that political methods simply do not allow. One would hope that the precedent established in a similar challenge will bypass any political constraints and deal a fatal blow to the death penalty.