Is the death penalty dying?

The most significant fact about the death penalty in the last thirty years or so is probably the steep decline in its global presence. More and more states have abolished the death penalty completely, by law; Ghana’s recent abolition is the latest addition to this camp, a celebratory day for international abolitionists which would have been rare in the past but is now becoming almost routine. Yet does this mean that global abolition – a complete eradication of the death penalty from the face of the earth – is necessarily on the imminent horizon?   

​​In recent years many activists and observers have replied in the positive and predict the “death of the death penalty”: suggesting that “the death penalty is in its death throes”, that global statistics show that “capital punishment is knocking on death’s door”, or that “we appear to be witnessing the last days of the death penalty”. Variations on this theme have become common, but while sharing the hope that the death penalty would be fully stamped out, I suggest, to paraphrase Mark Twain, that reports of the death of the death penalty have been highly exaggerated. I would like to explore some of the assumptions and premises that sustain the optimistic outlook.

The starting point of most optimistic predictions is global statistics, and especially the oft-cited assertion that over two-thirds of the world’s states are abolitionists. But statistics are never natural, and classification systems always convey some social construction: there is more than one way to organize the data, but one way has become dominant in death penalty discussion and affects perceptions. First, assessments that rely on the number of abolitionist states, while common and logical, skew the global picture toward a more positive finding as they count all states alike irrespective of their population. The six most populous countries in the world – China, India, United States, Indonesia, Pakistan and Nigeria, accounting for almost half of the world’s population – are retentionists. Around two-thirds of the world’s population lives in retentionist states, a fact which could get lost when tallying abolition according to state numbers. Second, states which have not executed for ten years are classified as abolitionist de facto (automatically by the UN, depending on additional policy indication in Amnesty International’s reports). This, in many cases, is a questionable classification. States can be classed and counted as “abolitionist” even when they continue to sentence to death. Some of them may have large death row populations; even when de facto moratoria make executions less likely, the fear of executions persists as long as the death penalty remains lawful, and the condemned remain stigmatized and traumatized – so grouping such states in the abolitionist camp may be dubious.

Both in relation to de-facto abolitions and more broadly, one assumption underpinning the optimist abolitionist outlook is of irreversibility: that was what gained will never be lost. But the premise of some historical law mandating that executions will not resume after some lull is based on extrapolating from the modern European experience and is not necessarily valid elsewhere. States including among others Bahrain, Chad, Guinea, Myanmar, Qatar and St Kitts and Nevis and have resumed executions after a long lull – while US federal executions also resumed in 2020 after 17 years. There is often an assumption of inevitable progress, that the result of the abolitionist struggle is already known, that “it is just a matter of time before the death penalty is consigned to the history books”. Sadly, there is actually no reason to presume that is the case. While the death penalty is often labeled as anachronistic, it is actually quite coherent with a world where war crimes, repression and suffering are hardly a deviant occurrence. Few observers predicted Brexit, Trumpism, COVID-19 and its devastating social implications, the reversal of Roe v Wade by the U.S. Supreme Court, and other trends of the last decade, so predicting that there would be no setbacks in the march of abolition can seem naïve – especially as democracy, human rights and economic development, often credited with the spread of abolition, all seem to be at risk currently.  

Another concern with optimistic scenarios about the imminent disappearance of the death penalty is that at times they fail to appreciate its entrenched role as a political-symbolic institution. In many (though by no means all) countries, the death penalty has been discredited as a regular law enforcement tool aimed to prevent ordinary crimes. This is to a large degree a result of the efforts of abolitionist activists and academics, demonstrating its futility in deterring offences, the discriminatory and arbitrary ways in which it is applied, and the inherent risks of wrongful convictions. But such arguments are less effective when the death penalty is used in the context of what is considered as political crimes and offences against the state, where it might be more difficult to discredit the death penalty, and where its functions are broader. Often it has proven much harder to let go of death penalty for treason than for murder – even Ghana’s recent abolition retained it for treason under the Constitution. The death penalty is still seen by governments as an effective tool against political dissent, as recent executions of political protestors in Iran potently remind, and terrorism and threats to national security, often broadly defined, are increasingly used to justify retaining capital punishment and buttress public support for it.

In such contexts, a decline in the quantity of the death penalty – number of executions – does not necessarily mean its significance is qualitatively diminished. Fewer executions are required to maintain its political functions and justify retention. Moreover, executions in the context of particularly infamous terrorist acts often recharge support of the death penalty, as many who otherwise oppose its regular use in law enforcement find it hard to object to it in such cases, especially as they remain uncommon. Emblematic examples include the executions of members of Aum Shinrikyo in Japan, of Timothy McVeigh in the USA or of perpetrators of the Mumbai attacks of 1993 and 2008 and the 2001 attack on Parliament in India.

In other cases, governments use death penalty laws and bills to send potent political messages, which do not depend on carrying out many – or any – executions. Israel’s recent bill to make death penalty mandatory for Palestinian terrorists, approved by parliament in preliminary hearing, contributes to a climate of repression and discrimination against Palestinians and is a useful tool for populist politicians even if no executions occur. In India, to give another recent example, a major proposed bill amending India’s penal code introduces the death penalty for mob lynching (a group of five or more persons acting in concert committing murder based on factors such as race, caste or community), allowing the government to convey resolve, scoring populist points not necessarily dependent on actual executions.  

Of course, the quantitative decline in executions is crucial; but it does not tell the whole story. To some degree at least, the death penalty has been bifurcated: as a regular law enforcement tool it is indeed dying, but it survives and even flourishes as an exceptional, symbolic, political institution. In the latter guise political rather than “ordinary” crimes are prominent, and the targets are often seen as traitors, terrorists or foreigners; the death penalty is often associated with military or special courts, with times of emergency and crisis, and not part of the ordinary criminal justice system; its functions are not crime control but asserting political authority and cultural norms, and it is used sparingly, if at all, as its symbolic functions do not require regular executions.

The various symbolic functions of the death penalty, its political significance, and cultural salience, cannot be captured adequately by the common global annual surveys. And the unique symbolic potency of the death penalty means it is hard to truly cleanse political culture from it. Abolitionists often make analogies with the disappearance of once common past punishments such as the pillory or flogging. But the political and cultural staying power of the death penalty is incomparable, and it continues to haunt many countries even decades after the last executions. Marine Le Pen, who won over 40 percent of votes in the second round of the 2022 France presidential elections, has been a supporter of the death penalty; and the deputy chair of UK’s ruling party expressed support for reinstating the death penalty, something supported by between 40 and 60 percent of the UK population, depending on exact questions and different polls. Indeed, even the fact that polls continue to ask people whether they support the death penalty (people are not asked if they’re in favour of slavery or rape) indicates that is not beyond the pale of political and cultural imagination. To return to the metaphor of the death of the death penalty, it may be that the death penalty becomes more like a zombie, difficult to be truly killed off.

Of course, the decline in executions, and the rising number of states abolishing the death penalty by law, must be celebrated, and a mood of optimism could convince others to join. But the assumption of an undisturbed path to imminent global abolition can lead to misdiagnosing the current problem. It is also the case that eradicating the death penalty as a political-symbolic institution may require a somewhat different set of tools than those used to discredit is as an ordinary law enforcement institution.   As Roger Hood wrote, the goal of abolitionist movement should be the universal acceptance of the message that the death penalty “cannot prevail in any form, even symbolically without executions.” The documented decline of the death penalty does not necessarily mean that we are nearing this state, but this should not be cause for despair or apathy, but to what Michel Foucault called in a different context “pessimistic hyper-activism”,[1] and perhaps for treating abolition not as a journey with destination but as an ongoing struggle.

An expanded version of the arguments made in this post is contained in Dr Dudai’s recently published article in the Theoretical Criminology journal, titled ‘Dead or alive? Reassessing the health of the death penalty and the prospects of global abolition’.

Dr Ron Dudai is a Senior Lecturer at the Department of Sociology & Anthropology, Ben Gurion University. He’s a board member of the Journal of Human Rights Practice, where he was previously co-editor. His work has been published in leading journals including British Journal of Sociology, British Journal of Criminology, Law & Social Inquiry, and Punishment & Society, and his recent monograph Penality in the Underground: The IRA’s Pursuit of Informers (2022) is published by Oxford University Press. In the past he also worked as a policy advisor at the International Secretariat of Amnesty International, and he currently serves on boards of several human rights organizations.

Photo credit for image: World Coalition against the Death Penalty via Flickr, licensed under Creative Commons CC BY-SA 2.0.