The use of the death penalty is impacted by many factors, including public perception as well as legal challenges.

Public Opinion

Public opinion on the death penalty in the U.S. is mixed, with Gallup polls showing 53% in favor of capital punishment for those convicted of murder, compared with 44% opposed. However, Republicans are significantly more likely to support the death penalty and believe it is fairly applied, so the death penalty has become a partisan issue.

Political divides help to explain why red states are expanding death penalty offenses and have been moving forward with more completed executions in recent years while many blue states have abolished capital punishment altogether or imposed a moratorium by executive order.

As the Supreme Court and many state courts have begun to take a more favorable view of executions as a method of punishment, states have begun to use alternative methods of executing prisoners and may continue down the path of increasing executions after years of a downward trend.

Legal Challenges

The constitutionality of the death penalty has been repeatedly challenged, with opponents arguing at various times that capital punishment could violate the Fifth, Eighth and Fourteenth Amendments.

In U.S. v. Jackson in 1968, the Supreme Court found unconstitutional a statute that allowed the death penalty to be imposed only if a jury recommended it because the Court found it encouraged defendants hoping to avoid the death penalty to waive the right to a trial by jury.

In 1972, the Supreme Court ruled that a jury having total discretion in sentencing defendants to death violated the Eighth Amendment. Forty death penalty statutes were invalidated by this ruling.

States revised their statutes, with some making the death penalty mandatory after conviction for certain crimes. However, the court found mandatory sentencing unconstitutional in Woodson v. North Carolina. The court did allow guided sentencing in a series of three cases referred to collectively as Gregg v. Georgia.

In Gregg, the court also found the death penalty was constitutional under the Eighth Amendment, allowed for a separate penalty phase after guilt was determined and provided for automatic appellate reviews of sentencing. Many states adopted these principles into their death penalty statutes.

Since the Gregg case, the courts have imposed new limits on when the death penalty can be applied, prohibiting the execution of people with intellectual disabilities (Atkins v. Virginia in 2002), as well as prohibiting the execution of those who were minors when they committed a capital offense (Roper v. Simmons in 2005).

However, the court declared executions using lethal injections constitutional in 2006 in Baze v. Rees, which is how most executions today are carried out. In Bucklew v. Precythe in 2019, the court also held that the Eighth Amendment does not guarantee a painless death.

The Supreme Court has also become reluctant to intervene in death penalty cases, with Justice Neil Gorsuch indicating that “last-minute stays should be the extreme exception, not the norm.”

Further legal battles may soon follow, as Florida and Tennessee both passed laws imposing the death penalty for certain sexual offenses against children. This is in contradiction with past Supreme Court precedents barring the death penalty for offenses in which no life was taken.

International Perspectives

As of 2022, 55 countries still have the death penalty, with nine restricting its use to the most serious offenses. Of those 55, 23 had not used the death penalty for at least a decade.

The majority of executions occur in China, which executes thousands, and Iran, where over 500 were executed in 2022. Saudi Arabia, Egypt, and the United States had the third, fourth and fifth most executions, respectively, with the U.S. executing 18 people in 2022.

Many countries have abolished the death penalty altogether, and several international treaties prohibit its use, including Protocol No. 6 to the European Convention on Human Rights, which the Council of Europe requires all new members to ratify.

The United Nations Human Rights Commission also passed a Resolution Supporting Worldwide Moratorium on Executions in 1999 over the objections of the U.S. and nine other countries, calling on countries to restrict the use of the death penalty. The resolution was adopted again in October of 2021.

The United Nations General Assembly has also repeatedly introduced a resolution for an international execution moratorium, with the United States voting no each time.

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Last Update: June 17, 2024

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