The Road to Abolition?: The Future of Capital Punishment in the United States

3. Abolition in the United States by 2050: On Political Capital and Ordinary Acts of Resistance

72 3 Abolition in the United States by 2050 On Political Capital and Ordinary Acts of Resistance Bernard E. Harcourt Is the United States on the road to abolition, and, if so, by when will it have abolished the death penalty? The federal structure of the United States complicates the answer to these questions; nevertheless, recent trends in the United States and within the larger international community suggest that the country is headed toward abolition of capital punishment. In all likelihood, a number of retentionist states will converge toward abolition over the course of the next 20 years. The combination of this domestic shift and the legal and political pressure of the international community will likely result in the U.S. Supreme Court imposing a federal constitutional ban on capital punishment, at the latest, by the mid-twenty-first century. It is entirely reasonable to believe that even before then—by 2035 or 2040—there will be no or very few executions in the United States. Recent statistics are extremely revealing. The United States witnessed significantly decreasing numbers of executions and capital sentences during the first decade of the twenty-first century—despite a continuing political shift toward crime-control policies, as evidenced by the steadily increasing rate of incarceration throughout the country.1 The historical trends are reflected in the following graphs. Figure 3.1 shows a steep decline in the number of executions in the first decade of the twenty-first century. Of the 42 executions that were carried out in 2007, the state of Texas accounted for 26 (or 62 percent) of the total, and only nine other states participated in the statistic (Alabama and Oklahoma executing three inmates each; Indiana, Ohio, and Tennessee two inmates each; and Arizona , Georgia, South Carolina, and South Dakota one inmate each).2 This reflects the fact that the death penalty in the United States has become Abolition in the United States by 2050 73 predominantly a Texas phenomenon and that, putting aside Texas (and occasionally a few other outlier states like Alabama, Georgia, and Virginia ), few executions are being carried out in the rest of the country. The decrease in the annual number of executions has gone hand in hand with a similar decrease over the period in the number of persons sentenced to death in the United States, as reflected in figure 3.2. The declining trend in the imposition of capital sentences is not only true at the national, aggregated level but also at the individual state level. Even in a state like Texas, prosecutors and politicians have tempered their enthusiasm for death sentences.3 In addition, the number of abolitionist states has increased since the U.S. Supreme Court approved post-Furman capital statutes. Since then, Massachusetts, North Dakota, Rhode Island, New Jersey, New York, and Vermont joined the ranks of eight other abolitionist states (Alaska, Hawaii , Iowa, Maine, Michigan, Minnesota, West Virginia, and Wisconsin) that had never legalized capital punishment.4 And on March 18, 2009, New Mexico abolished the death penalty. This trend is reflected in figure 3.3. These graphs and the underlying data are merely the objective reflection of a series of unexpected developments, many of which are recounted in greater detail in the chapters of this book. New York State reinstated 0 20 40 60 80 100 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Year Number of executions Figure 3.1 Number of executions in the United States, 1999–2008 Data from U.S. Department of Justice, Bureau of Justice Statistics, 2007 (table 15). 74 0 50 100 150 200 250 300 1999 2000 2001 2002 2003 2004 2005 2006 2007 Year Number of death sentences Figure 3.2 0 10 20 30 40 50 Retentionist States Abolitionist States 1971 1981 1991 2009 Period Number of states Figure 3.3 Number of death sentences imposed in the United States, 1999–2007 Number of abolitionist and retentionist states in the United States, 1971–2009 Data from U.S. Department of Justice, Bureau of Justice Statistics, 2007 (table 14). Data from Jacobs and Carmichael, 2002, and Death Penalty Information Center, 2008. Abolition in the United States by 2050 75 and flirted with the death penalty in the early 1990s but after several years ultimately rejected capital punishment. A Republican governor in Illinois, George Ryan, imposed a moratorium on the death penalty because of the mounting number of wrongful convictions...