The question featured in the title of this book of essays asking whether the U.S. death penalty is in decline may initially seem easily answered by recent events. After several presidential elections where one party has officially opposed the death penalty, the most recent race involves two candidates who will not assert such an opposition, including one candidate who oversaw the most federal executions in more than a century during 2019–2020. Meanwhile, states continue to carry out the death penalty and to sentence prisoners to death. One may wonder where the “decline” is.
Yet, the question is worth addressing. During the last two decades, for various reasons, executions have drastically dropped while largely being limited to smaller geographic areas. While some of that decline is due to problems with lethal injection as an execution method, other reasons include growing concerns about capital punishment in general. For example, in the last few decades, more than in any other time in U.S. history, a number of states have either abolished the death penalty or imposed a moratorium on executions.
So, the collection of essays in Death Penalty in Decline? The Fight against Capital Punishment in the Decades since Furman v. Georgia provides a timely examination of this drop in the use of the death penalty. The book explores the punishment in the context of the U.S. Supreme Court’s 1972 landmark decision in Furman v. Georgia, which in effect temporarily suspended the death penalty in the United States on the grounds that it violated the Eighth Amendment’s ban on cruel and unusual punishment. The work is edited by Professor Austin Sarat and brings together death penalty scholars offering different perspectives on Furman’s legacy.
In Furman v. Georgia, a majority of the Supreme Court Justices, in separate and varying opinions, ultimately concluded that the death penalty as administered at the time was unconstitutional. The case’s result, and the Court opinions concerned about the arbitrary use of capital punishment, led many at the time to believe Furman marked the end of the death penalty in the United States. But almost immediately, states rewrote their death penalty statutes to allay some of the Justices’ concerns, and the Supreme Court upheld a more regulated (and ostensibly less arbitrary) use of capital punishment 4 years later in Gregg v. Georgia. Yet, Furman’s impact remains. In particular, it left behind a lingering critique of the death penalty as an arbitrary, discriminatory, and inhumane punishment that is disproportionately utilized against the poor and the racially minoritized.
Sarat breaks the book into two parts. The first part of the book looks back to Furman v. Georgia, assessing that landmark decision and its legacy. The second part of the book further uses Furman as a starting point in addressing the question of whether the United States today is “on the road to abolition” of the death penalty.
In the first chapter, John Bessler discusses how Furman could have had a major impact on criminal justice reform but ultimately did not. Instead, he argues, the Supreme Court failed to adequately address the inhumaneness of the death penalty, which he asserts is a punishment akin to cruel torture. By contrast, Linda Ross Meyer in the second chapter focuses on the latter part of the language of the Eighth Amendment’s ban on cruel and unusual punishment, critiquing the Court for failing to embrace that the death penalty is in fact “unusual.” In particular, Meyer concludes that it is “unusual” to treat human beings as something less than human as the death penalty does.
In the final chapter of the “Looking Back” section, Carol Steiker and Jordan Steiker explain how Furman v. Georgia initiated a change in capital punishment jurisprudence to create a death penalty system much different than the one that existed in 1972 when that case was decided. Today, they further explain, executions are relatively rare, and the death penalty exists in many fewer states than it did in 1972. Therefore, among their conclusions is that capital punishment has become less of a political issue—and thus that a Supreme Court decision abolishing the death penalty today would not result in the political backlash that greeted Furman in the 1970s.
The second section of the book expands on that comparison of how the death penalty today differs from the death penalty at the time of Furman. Sara Mayeau examines the modern anti-death penalty movement and its relationship to Catholicism. In her chapter, she notes how the Catholic Church shifted its position on the death penalty in the decade after Furman. Yet, she explains, the Church’s support for death penalty abolition never manifested the same political support that has developed around its position on abortion.
In the next chapter, Corinna Barrett Lain focuses on the similarities between today’s death penalty and the death penalty at the time of Furman. She argues that the death penalty of today is dying, much as it seemed to be doing before Furman was decided. As she sees it, death penalty abolitionists learned from Furman’s backlash. Instead of only focusing on the courts, abolitionists are finding success in state legislatures. Lain asserts that states in recent years have abolished the death penalty not because of a sudden moral aversion to state-sanctioned killing. Instead, states have realized the punishment no longer makes sense as a practical matter, not least given the tremendous financial costs involved in maintaining a capital punishment system that meets the Supreme Court’s post-Furman specifications.
Finally, James Martel takes a more pessimistic view of the post-Furman death penalty and the possibility of abolition than the other authors. Invoking the writings of philosopher Walter Benjamin, Martel focuses on state-sanctioned violence and the state’s need to have the authority to kill. He concludes that even as the state’s use of the death penalty may decline, the state’s violence continues in other forms such as police killings. Martel warns that state killings will remain a part of the law in some form, noting it is likely “that the death penalty will continue on in its zombie existence, killing increasingly rarely, maybe effectively stopping to kill altogether, but never quite abolishing the power that gives the law its vital life in the first place” (p. 218).
Together, the different authors provide an important range of perspectives on the jurisprudence of the death penalty and its connection to Furman v. Georgia. That case created a major rupture in the legal history of the death penalty in the United States. Furman required the Court and legislatures to start again after 1972, and this book considers many of those changes in the context of the recent decline in the use of capital punishment.
One limitation from the book’s overall focus on Furman arises from the fact that most of the opinions in that case ignored the full historical connection between race and capital punishment. Some of the book’s authors, however, briefly reflect on that history. For example, Bessler provides some background leading up to the Furman decision, including the role of racism in capital sentencing and the work of NAACP Legal Defense Fund lawyers in death penalty litigation. Furthermore, both he and the Steikers discuss another landmark Supreme Court decision, McCleskey v. Kemp, where the Supreme Court rejected constitutional challenges to the death penalty based on racial disparities in Georgia’s capital sentencing.
A book of chapters by different authors, of course, does not present a singular thesis in the same way one writer would. And the book does not attempt to present a personal critique of the death penalty in the way that books like Bryan Stevenson’s 2014 Just Mercy or Sister Helen Prejean’s 1993 Dead Man Walking do. Nor does it attempt a comprehensive history of the U.S. death penalty or even an in-depth legal history of the lawyers’ work and the Justices’ decision in Furman, as do other books such as Evan J. Mandery’s 2013 A Wild Justice. But by featuring scholars discussing different aspects of Furman’s impact, Sarat and the chapter authors have produced an important intellectual discussion of the modern death penalty, finding both common ground and some points of disagreement. Sarat here has done an excellent job of collecting and cultivating these different perspectives into a book that provides readers with outstanding insight into the impact of a landmark Supreme Court case and into the questionable future of the death penalty in the United States.
