The Twenty-First Century Death Penalty and Paths Forward
37 Miss. C. L. Rev. 80, 2018
26 Pages Posted: 12 Aug 2019
Date Written: August 8, 2018
Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States. Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration. While not abolished, in many states application of the death penalty is grinding or has ground to a halt. If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age in prison while still waiting on death row with a variety of challenges still pending in the courts.
This reality presents an opportunity, or perhaps more accurately a responsibility, for renewed reflection by state legislators. There at least three clearly discernable paths forward that states could follow. One is to continue the present course with states maintaining the status quo which leads to some persons who are sentenced to death being executed often after decades on death row while most death-row inmates die from natural causes in prison. Two, states can abandon the death penalty in favor of the maximum sentence being life without the possibility of parole. Three, states can streamline the process for addressing legal challenges after a defendant has been convicted and sentenced to death to prevent decades of delay before executions are carried out.
In seeking to derive a better understanding of the current realities of actual application of death penalties and to explore the potential paths forward for the states, this article begins in Section I by addressing delayed application of the death penalty in death penalty states. Section II next explores the transformation that has occurred in the interval between sentencing and execution from colonial America to the present. In doing so, Section II addresses the reasons for the significant elongation of the interval between sentencing and execution that has occurred over the last four decades. Section III examines some of the deleterious consequences that arise from these delays for those sentenced to death, the families of victims, and the states themselves. Section IV begins to delineate that paths that are available to the states in moving forward, considering some of the pitfalls and possibilities.
Keywords: death penalty; capital punishment; evolving standards of decency
JEL Classification: K14
Suggested Citation: Suggested Citation