Progress and impediments on path to abolition in U.S.   


By Russ Feingold & Christopher Wright Durocher, on 3 April 2024

When President Biden won the 2020 election, he became the first successful U.S. presidential candidate to publicly oppose the death penalty.

As part of his promise to work toward abolition, the Biden campaign noted that “Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated.” In 2021, the U.S. Department of Justice (DOJ) announced a moratorium on federal executions, recognizing, among other things that “[s]erious concerns have been raised about the continued use of the death penalty across the country.” The President, his campaign, and the DOJ are right to express concern about a punishment that, even setting aside the immorality of state-sanctioned killing, has never been applied fairly, justly, or equally.  

That made it especially disheartening when, earlier this year, the DOJ, led by an attorney general appointed by President Biden, announced that it would pursue the death penalty against Payton Gendron. In 2022, Gendron had killed ten Black people in a racially motivated shooting in a Buffalo, New York, grocery store. Before the DOJ announced the capital charges, Gendron had already pled guilty to the murders in New York state court and was serving a life sentence with no possibility of release. Justice, to the extent that it can ever be achieved in such a heinous situation, had already been done.  

The American Constitution Society spoke out against the decision, with one of the authors, ACS President Russ Feingold, observing that “By pursuing the death penalty in a single case, regardless of the facts of that case, the federal government validates state-sanctioned killings as a policy and a practice.” The fact is the death penalty in the U.S. is plagued with dysfunction. Any honest assessment of the criminal legal systems used to investigate, capitally charge, try, and ultimately execute people in the U.S. reveals a cruel, random, and ultimately tortuous practice. 

Lack of adequate defense resources means that questions around innocence and culpability abound in death penalty cases. The most recent execution in the U.S., that of Ivan Cantu by Texas in February, happened under a cloud of doubt about witness credibility, including one witness who recanted his testimony. A court never considered these claims. To date, at least 195 people sentenced to death in the U.S. have been subsequently exonerated. The true number of people wrongly convicted or sentenced to death is difficult to know, but undoubtedly much higher.    

The death penalty also magnifies racial disparities already present in the U.S. criminal legal system. Cases involving white victims are far more likely to result in prosecutors seeking the death penalty, and people of color, particularly Black people, make up a disproportionate share of those people ultimately executed. The mentally ill and intellectual disabled are also disproportionately reflected in the nation’s death row population. Combined with the fact that the death penalty is only actively used in a handful of counties in a handful states, the likelihood of facing execution is more a reflection of demographics and location than a reflection of the heinousness of any given crime.  

Even the mechanics of executions are beset with problems. Idaho’s failed attempt to execute 73-year-old Thomas Creech in February (on the same day Texas killed Cantu) is only the most recent example. According to researchers, more than a third of executions attempted in 2022 were botched. States, too often operating in secret, tinker with untested drug protocols, experiment with nitrogen hypoxia, and consider returning to firing squads and the electric chair all in a futile attempt to find a “better” way to kill people. These are macabre experiments that deny the fact that killing is an inherently brutal and inhumane practice. 

It is reasonable to see this litany of dysfunction and conclude that the death penalty in the U.S. is broken. In fact, for the first time since pollsters began asking the question, more Americans believe that the death penalty is applied unfairly than fairly. Unsurprisingly, public opposition to the death penalty is also at near all-time high.   

But to say the death penalty is broken is to imply that it can be fixed or reformed to operate more justly. It cannot be. ACS understands this and focuses our work on highlighting the legal and moral failings that are inexorably bound up in the death penalty.   

The U.S. Constitution’s Eighth Amendment prohibits “cruel and unusual punishments.” The current U.S. Supreme Court, controlled as it is by a conservative supermajority, has shown a near-total disregard for the cruelty of the death penalty. But the waning of the death penalty in the United States is becoming too hard to ignore. The fact that executions and death sentences are “unusual” has become undeniable.  

Executions and death sentences have been trending down since their historic highs in the late 1990s. In the past two decades, eleven states have abolished the death penalty, bring the total of non-death penalty states to 23 out of 50. In addition, six states are currently under governor-imposed moratoria on executions. Even in most states that still have the death penalty, it is rarely used. In 2023, only five states were responsible for the 24 executions nationwide, and only seven states accounted for the 21 new death sentences. Even in these few states, only a handful of counties were responsible for the majority of death sentences and executions. 

The rarity of death sentences and execution makes the death penalty all that more arbitrary and cement its unconstitutionality. Those facing death sentences are not the worst of the worst, but simply the random defendants caught up the in the political, racial, and regional dynamics of a hopelessly dysfunctional death penalty system. In fact, the Death Penalty Information Center asserts that most of the 24 people executed in 2023 would not even be sentenced to death today, because of “[c]hanges in the law, such as the alternative sentence of life without parole, the elimination of non-unanimous death sentences in most states, the exclusion of people with intellectual disability from death penalty eligibility, and changes in the common and scientific understanding of mental illness and trauma and their lasting effects . . . .”   

The death penalty in the U.S. is on its way out. It is losing at the ballot box and in the jury box. Soon the judiciary will have to acknowledge that it is an act, not of justice, but of arbitrary and unconstitutional vengeance. The question is how much more suffering and debasement we are willing to tolerate as the end of the death penalty in the U.S. draws nearer. 

Text by Russ Feingold, President & Christopher Wright Durocher, Vice President of Policy and Program, American Constitution Society 


United States

More articles