Mores in societies change over the years. While slavery, torture and public executions were once a global phenomenon, and foot binding and deadly duels were deeply entrenched aspects of regional cultures, they are no longer considered acceptable by the international community.
In line with what the United States Supreme Court once called “evolving standards of decency,” we appear to be witnessing the last days of the death penalty. International law experts like William Schabas, at Middlesex University in London, estimate that if current trends continue, the death penalty may for all practical purposes become a thing of the past by 2026.
Indeed, there has been a radical drop in the number of nations whose laws allow the death penalty. But perhaps more important, for those countries that retain such laws, the circumstances under which it may be imposed are growing more restricted. In many countries it plays only a symbolic role.
Of the 193 United Nations member states, 94 do not allow capital punishment in their legal systems. Of the remaining, 49 are considered to be “de facto abolitionist” and have not executed anyone for 10 successive years. Only 50 countries are now “retentionist.” In 2011, only 21 of these carried out executions, and only 7 executed more than 20 people.
In the United States – one of the only democracies in the world that in some states still retains this type of punishment – the same trend may be identified. The total number of abolitionist US states is now 17, following the abolition by Illinois in 2011 and Connecticut in 2012.
Several reasons explain the decline in the use of the death penalty. The emerging international human-rights framework has certainly taken a central role. Moreover, as noted by the Harvard psychologist Steven Pinker, humanity as a whole is much less violent today than in the past, and as a result has become more reluctant to use this extreme form of punishment.
Recent advances in technology show that one of the most fundamental fears about the death penalty is not unfounded: innocent people are wrongfully convicted and executed. The US provides stark proof of this reality, as its sophisticated scientific and legal systems sometimes catch these fatal mistakes before it is too late. Since the first exoneration through DNA testing in 1993, 17 people sentenced to death have been exonerated through this technology alone.
Many innocent people have and will be executed in countries around the world where defendants and judicial systems do not have access to such advanced technologies.
The legal safeguards that have been put into place, at least in some countries, have changed the nature of the death penalty. In the US, it often takes decades after a conviction for the sentence to be imposed. It is hard to see how executions after such long periods can fulfill a retributive goal.
Moreover, an extended sojourn in the shadow of the gallows – often in solitary confinement – is also certain to cause the condemned and those close to him or her extreme suffering, which may in itself constitute torture.
There is no “clean” way to execute people. Firing squads, hanging, asphyxiation: all these methods have been met with increasing revulsion. Lethal injections – which have largely been a last resort in the US – have come under pressure as well, especially after it was found that it could take up to 30 agonizing minutes once the injection was applied for the person to die.
The spectacle of such a death led, for instance, to a moratorium on executions in Florida. Last-minute postponements can occur because of changes in the drug regimes. In Georgia recently, Warren Lee Hill Jr. had eaten his last supper before a dispute began about exactly how to kill him, which led to a second postponement of his execution.
Almost all aspects of carrying out the death penalty have become so problematic that many of its former supporters are starting to think it is simply no longer worth it. This calculation also plays out in crude dollar terms: while it used to be cheaper to execute someone than to pay for life imprisonment, execution in the US is now often more expensive, because of all the safeguards that must be negotiated.
In addition, the death penalty in the US is discredited because of its abuse by states, where procedural loopholes are created to execute people with severe mental disabilities. While the system prevents the federal government from interfering, executing those with a limited understanding of their crime and guilt does not bring honor to anyone. A disproportionate number of those who are eventually crushed under the slow wheels of justice are minorities and people who cannot afford proper legal protection.
There is a growing aversion to continue what many now regard as an anachronistic form of punishment that jeopardizes the dignity of not only the condemned person but also the honor of those who do the execution.