Is the Death Penalty Coming to an End?

By Nyla Knox.

After seventeen years without a federal execution, the U.S. Department of Justice recently executed thirteen people in a six-month period. In this six-month period, the federal government executed more than three times as many people than it did in the past six decades. In fact, prior to the seventeen-year hiatus, only three people were federally executed since 1963. These executions occurred in the wake of growing disapproval of the death penalty, as people across the country urge the Supreme Court to abolish capital punishment.

The death penalty is currently legal in twenty-eight states, in the federal government, and in the U.S. military. However, capital punishment remains a hotly debated issue nationwide. In 1972, the United States Supreme Court ruled that the death penalty was unconstitutional because it constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Court reasoned that courts applied the death penalty in a discriminatory and arbitrary manner, often against minorities and the poor. However, four years later, the Supreme Court reinstated the death penalty. The Court found that sentencing guidelines would ensure that courts use capital punishment fairly. Furthermore, the Court opined that evolving standards of human decency had not rejected capital punishment. Since this decision, though, Supreme Court justices and the public have expressed disapproval of the death penalty. This ongoing issue has not only caused state legislatures to respond, but it has also raised important legal questions on whether the death penalty is a constitutional method of punishment.

Legal Issues Concerning the Death Penalty

Some Supreme Court justices have expressed that the death penalty is likely unconstitutional. Thus, they have continually urged the Supreme Court to reexamine whether it should abolish capital punishment. For example, Justice Breyer has repeatedly expressed his concern that the death penalty often “affects not the ‘worst of the worst,’ but, rather, [] individuals [who are] chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or [] worse on the basis of race.” In one case, Justice Breyer noted in his dissent that studies have shown that defendants accused of murdering white victims are more likely to be sentenced to death than those accused of murdering black and brown victims. Furthermore, he explained, wrongful convictions occur at a higher rate in capital cases than in ordinary cases. Other justices have agreed that the death penalty likely violates the Constitution in part because it fails to meet its policy objectives and because capital prisoners face excessive delays, subjecting them to psychological torture. And while many believe that the death penalty deters crime and provides victims with retribution, some justices opine that it is not a proven deterrent and has little retributive impact due to the nature of painless executions.

Public support for the death penalty is also at its lowest. In a recent poll, only 55% of Americans said they favor capital punishment, an 11% decline since 2000. In fact, 60% of Americans favor life imprisonment without the possibility of parole as a punishment for murder over the death penalty. Support for life imprisonment over the death penalty has increased by 15% over the past six years. And as citizens and activists have risen up to protest against racial injustices, public tolerance for the death penalty’s discriminatory impact is at an all-time low. It remains unknown, though, whether these views will push the Court to revisit capital punishment’s constitutionality. In the meantime, however, state legislatures have begun to take action.  

The Death Penalty in Arizona

The death penalty is currently legal in Arizona, and there are 119 prisoners on death row. Since 1976, thirty-seven people have been executed within the state. However, Arizona has not executed a prisoner since 2014, when an execution left a prisoner suffering for two hours before he died. The prisoner, Joseph Wood, received fifteen doses of lethal chemicals. Following this horrific event, the state paused executions to review its execution protocols. Recently, it has been difficult for states to acquire the lethal drugs needed to carry out executions because many manufacturers have refused to sell them. But the Arizona Attorney General’s Office and the Arizona Department of Corrections have said they are close to securing a pharmacist to administer an approved lethal drug. Only time will tell whether Arizona will end its hiatus and resume state executions. 

Other states, though, have taken action to abolish the death penalty. For example, Virginia expects to end the death penalty under state law in 2021. In the wake of public outrage following George Floyd’s death, Virginia lawmakers turned their attention to the discriminatory effects that the death penalty has on minorities and the economically disadvantaged. This is especially monumental because Virginia is a southern state that was once a part of the Confederacy. Many other states have also proposed legislation to either limit or completely abolish the death penalty. 

Conclusion

The federal government’s recent executions have highlighted many of the underlying issues and controversies that exist regarding the death penalty. Supreme Court justices and the public both seem to demonstrate a declining level of support for capital punishment. And in response to these concerns, many states have begun to reexamine whether to abolish the death penalty under state law. As this ongoing issue continues to unfold across the country, including in Arizona, many are awaiting to see how legislatures respond to the unresolved constitutional questions that capital punishment raises. 

"Constitution in the National Archives" by Mr.TinDC is licensed under CC BY-ND 2.0

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By Nyla Knox.

J.D. Candidate, 2022

Nyla is a 2L Staff Writer from Phoenix, Arizona. Before law school, she earned her Bachelor of Science in Justice Studies from Arizona State University. In her free time, she enjoys trying new local restaurants and watching HGTV.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.