The death penalty is arbitrary in practice. Whether one gets sentenced to die depends on such irrational factors as poverty and the quality of defense counsel, mistaken eyewitnesses and jailhouse snitches, junk science, and prosecutorial abuse.

Human rights activists are building momentum to abolish the death penalty around the world. This is even though many politicians, economic, religious, and media elites still support it.

The Origins of Capital Punishment in the U.S.

In the early days of American independence, state laws and the Federal Criminal Code permitted and even required death sentences for some crimes. Jurors were not allowed to impose punishment other than death for a guilty verdict, and a conviction would only be overturned by a federal court ruling known as a writ of habeas corpus. As a result, some juries refused to convict and instead handed down verdicts of not guilty or not responsible, a trial outcome commonly called jury nullification.

During the late 1970s and 1980s, the Supreme Court ruled that capital case due process rules must be strictly followed. The court also ruled that the death penalty cannot be imposed on charges of rape or treason and ruled that defendants in capital cases must be allowed to present evidence to support their claims of innocence.

Despite these changes, many states continued to execute convicted murderers. In the past decade, however, pro-death penalty groups have made successful efforts at the state and federal levels to streamline capital appeals and expedite executions. In addition, inmates have found ways to delay their executions by using the legal tool known as habeas corpus.

The average prisoner awaiting execution spent nearly 19 years on death row in 2019. Several nonprofit organizations work to end the use of the death penalty, including the National Coalition to Abolish the Death Penalty, founded in 1976, and the Innocence Project, founded in 1992, which provides legal services and DNA testing to exonerate wrongfully convicted prisoners.

The Practice of Capital Punishment in the U.S.

While most nations have abolished capital punishment, the United States continues to execute prisoners and use it as a deterrent against violent crime. In recent decades, the practice has diminished as many state governments have abandoned it, and executions of condemned prisoners by the federal government have declined.

Nonetheless, the death penalty remains legal in 27 states and Washington, D.C., as well as in American Samoa and the U.S. Virgin Islands. It is used for crimes such as homicide and other serious violent offenses.

Public opinion about the death penalty is polarized, with Republicans and Republican-leaning independents more likely to support it than Democrats and Democratic leaners (67% vs. 49% in 2020). A majority of adults in the country, however, say that the death penalty does not serve as a deterrent against serious crime, and six in ten believe that there is some risk that an innocent person may be executed.

In the past few years, 78 men and two women in the United States who were sentenced to die on death row have been freed from prison after it became clear they had been wrongly convicted due to errors or misconduct by the authorities. Many are now living on the streets or in the homes of relatives. Others have escaped the country, but most live in Florida, which leads the nation in wrongful death sentences.

The Methods of Execution in the U.S.

In the states that allow it, the death penalty can only be imposed by a jury. In most cases, the decision requires a unanimous vote; a hung jury means a life sentence in two states (Indiana and Missouri). In the rest, a judge will decide. However, federal law allows a convicted prisoner to request a review of their case through the writ of habeas corpus, available for all prisoners.

States have been experimenting with ways to carry out the executions ordered by the Supreme Court after Furman. Some rewrote their death penalty statutes to address the court’s concerns, and others introduced alternative methods of killing. These include electric chair, lethal gas including cyanide, firing squad, and hanging.

Hanging was the most common method of execution in the United States until 1977 when the practice fell out of favor after several botched attempts. It involves suspending a prisoner by a rope around the neck; the expectation is that the fall will break the victim’s neck, killing them, although Denno said that has not always been the case.

In four states, an alternate method of execution is available if lethal injection is declared unconstitutional (electrocution in Arizona, Kentucky, Tennessee, and Utah; nitrogen hypoxia in Alabama and Wyoming). Those states also have laws specifying that they can use other methods for offender sentences entered before the state switches to lethal injection.

The Effects of Capital Punishment in the U.S.

Whether capital punishment is morally justifiable rests on a fundamental distinction between two broadly different approaches: retributivism, focusing on past conduct that merits death as a penalty, and utilitarianism or consequentialism, which pays attention to consequences, especially crime-prevention benefits.

In the latter approach, punishment serves as a “communicative” means by which society sends a message to potential killers. Various scholars have sought to determine the effects of the death penalty by studying whether it deters murder more than life imprisonment. However, many studies have failed to show any deterrence at all.

Some difficulty in establishing a deterrent effect stems from difficulty controlling for variables. Studies that compare homicide rates in jurisdictions with and without the death penalty may be affected by socioeconomic conditions, population densities, varying facets of law enforcement, and other factors.

In addition, those who support the death penalty tend to argue that any deterrence effect is outweighed by a desire to protect society from murderers. But this argument, which assumes that all murderers are incorrigible, risks judging people who have committed atrocious crimes as having lost their essential humanity. It also requires executing people who have voluntarily chosen to commit criminal acts rather than based on their guilt or remorse.