The Puzzling Persistence of Capital Punishment

George Mason Legal Studies Research Paper No. LS 24-08

NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, Vol 38, 2024

48 Pages Posted: 6 Apr 2024

See all articles by Craig S. Lerner

Craig S. Lerner

George Mason University - Antonin Scalia Law School

Date Written: April 5, 2024

Abstract

For over 250 years, Western intellectuals have been pronouncing capital punishment a barbarity doomed to be swept into the dustbin of history. The death penalty, we have repeatedly been told, is an “anachronism” inconsistent with the spirit of the modern age—a relic that would, in a generation or two, fade away. What is distinctive about recent decades is the confidence and monolithic quality of elite opinion, at least in the West. There is a swelling confidence that the death penalty is, at last, at the cusp of extinction.

This Article questions the descriptive claim that the death penalty is dying, either in the United States or in the world at large. Simply counting the number of nations that have technically abolished the death penalty fails to capture the apparent permanence of capital punishment. Many non-Western civilizations retain the death penalty with a vigor that surprises and disappoints Western intellectuals. And even within the United States, given the prohibitive cost of imposing a death sentence, it is remarkable how determined so many Americans are to continue to execute the worst of criminals.

As argued in this Article, the simplest answer to the puzzle of capital punishment’s persistence is that the retributive impulse is, as Justice Potter Stewart observed, “part of the nature of man.” The answer is so obvious that what is puzzling is not the persistence of the death penalty but that some people regard this persistence as puzzling. The dismay of modern Western intellectuals at the recurring failure of abolitionist efforts points to defining features of that intelligentsia. Since the Enlightenment, many intellectuals have regarded nature as a weak and even nonexistent constraint on human progress. It is from this perspective that the persistence of capital punishment, so seemingly rooted in human nature, comes to sight as such a puzzling disappointment.

Keywords: capital punishment, death penalty, the Enlightenment, intellectuals, global trends, United States v. Tsarnaev, Furman v. Georgia, Boston Marathon bombing, abolition

JEL Classification: K1, K10, K14, K40, K49

Suggested Citation

Lerner, Craig S., The Puzzling Persistence of Capital Punishment (April 5, 2024). George Mason Legal Studies Research Paper No. LS 24-08, NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, Vol 38, 2024, Available at SSRN: https://ssrn.com/abstract=4785545 or http://dx.doi.org/10.2139/ssrn.4785545

Craig S. Lerner (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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