Skip to main content

What's the Future of the Death Penalty in America?

Two recent high-profile cases have once again highlighted America's complex relationship with the death penalty. In Colorado, a jury declined to impose the death penalty on theater shooter James Holmes. And in Connecticut, whose legislature had recently abolished capital punishment prospectively, the state supreme court held that the Connecticut constitution barred the execution of those whose offenses had preceded that legislative change.

Both cases contributed to the ongoing national capital punishment debate. Some openly wondered whether the availability of the death penalty in Colorado still has any practical meaning, if jurors couldn't be convinced to impose it on someone like Holmes. And the Connecticut court's opinion included an extensive discussion of the various trends taking shape across the country. It's clear that the question of the future of capital punishment in America remains a lively one. (Full disclosure: I'm a criminal defense attorney, and my practice includes capital cases, including one that is currently pending.)

It's not hard to understand why this debate generates such strong feelings on both sides. Although my work has been on the defense side, anyone involved in the justice system gets a first-hand look at the heinous nature of violent crime. Crime scene and autopsy photos, and the visible emotions on the faces of the family members who attend every hearing, are constant reminders of the horrific harms that human beings can inflict on one another and the irreparable damage caused to those left behind.

On the other hand, some believe that regardless of the circumstances it's simply unacceptable for the state to take the life of one of its citizens. Others who can accept capital punishment in theory question whether our existing system is sufficiently reliable to support that penalty (a concern I've come to share based on my time in that system).

With such powerful motivations on both sides and the highest of stakes involved, it shouldn't be surprising that this is such a passionate debate. And one development that's significantly affected the course of capital punishment in America is the fact that death penalty opponents have been extremely effective in making it increasingly difficult to actually secure and impose a death sentence.

First, they've devoted an extraordinary amount of effort and resources to training defense lawyers at the trial level to avoid death sentences for their clients. (Colorado, where the Holmes trial took place, is a national center for this type of education; the "Colorado Method" of jury selection is a staple of capital defense training.)

And of course, an initial death penalty determination doesn't end the matter. There are several layers of appellate review through a series of courts, and cases involving death sentences get extra appellate scrutiny. The actual legal rules are more demanding, and those rules may be applied in an especially exacting way--particularly if some of the judges along the way have their own reservations about capital punishment. The result is that death-penalty cases are regularly reversed and sent back for new trials or sentencing proceedings. For example, in Oregon, where my practice is based, the State is about to take its fourth shot at securing a death sentence for serial killer Dayton Leroy Rogers; Rogers was convicted back in 1989 and has been sentenced to death 3 times, with the Oregon Supreme Court ordering resentencing each time.

Finally, even if a death sentence survives all of this review, it still has to be imposed, and this is no mere formality--again, partly because of the efforts of abolitionists, who have made it difficult for companies to supply the chemicals needed for executions. The result is that even some states with large numbers of prisoners on death row virtually never actually execute anyone. In recent years, several governors have gone as far as declaring moratoria on executions in their states, in some cases formalizing what had already been the rule in practice.

All this means that it takes a lot of political will to actually carry the process to its end and execute someone--a point illustrated by some intriguing facts cited in the Connecticut court's opinion. Apparently, the vast majority of American executions are concentrated within a small band of states--in 2014, for example, Texas, Missouri, Florida and Oklahoma collectively accounted for approximately 90 % of the nation's 35 executions, and similar concentrations within small subsets of states appear across broader time periods. Presumably, these are the states where legislators, prosecutors and others not only believe strongly in the death penalty themselves, but understand that their constituencies share that belief and will support them in the face of vigorous opposition.

So what's the future of the death penalty in America? I don't see it going away at the national level. Abolitionists have fought for decades to have the Supreme Court declare capital punishment categorically unconstitutional, but although they've come close at times and clearly have the ears of some current justices, I don't expect that the Court will ever go that far--at least not anytime soon. So I expect that capital punishment will remain constitutionally permissible, and that those states with steadfast support will continue imposing it.

Meanwhile, those states whose residents are more ambivalent about the death penalty may increasingly reconsider whether a capital punishment regime is worth the immense costs, burdens and endless litigation required to keep it in place--especially given the increasingly significant possibility that even a defendant sentenced to death may never actually be executed. These questions may be mulled over by legislatures, governors, prosecutors, and others. (A judge in Kentucky, for example, recently forbade the state from seeking the death penalty in a murder case based on her apparent conclusion that that penalty would never actually be imposed, so that the enormously increased costs and burdens compared to a non-capital case would end up being wasted.) And through it all, Americans of goodwill will continue to debate the questions of whether and when the ultimate penalty should be imposed.

Source: Huffington Post, Kevin Sali, August 29, 2015. Mr. Sali is a criminal defense attorney in Portland, Oregon, USA.

Report an error, an omission: deathpenaltynews@gmail.com

Most viewed (Last 7 days)

Florida | Former prison warden who oversaw executions urges corrections workers to not participate in them

Recently Florida carried out the execution of Dusty Spencer , a 74-year-old Marine veteran, for the murder of his wife, Karen, in 1992. It was the ninth Florida execution this year. For their own sake, I urge Florida’s corrections workers to refuse to carry out another one. Before you dismiss me as some soft lefty, you should know that I am an Air Force veteran. I voted for Ron DeSantis for governor twice—and for Donald Trump for president three times.

Iraq: Saddam Hussein Execution was Moved Forward Because of Gaddafi Rescue Plans, Judge Says

Saddam Hussein's execution on December 30, 2006 The execution of former Iraqi President Saddam Hussein was accelerated due to the belief that the then Libyan leader, Muammar El-Gaddafi, had a plan to rescue him from prison, Judge Mounir Haddad revealed today. Hadad, who presided over the trial of Hussein, revealed to the Al-Arabiya Satellite Channel Point of Order program new details of the trial against the former president and his last moments before being hanged, including the 'health and welfare' votes for the magistrate himself . According to his testimony, the application of the death penalty to Saddam Hussein was precipitated because authorities knew that El-Gaddafi - later murdered in 2011 - was allegedly trying to bribe US guards who guarded him to rescue him from prison. He added that, contrary to previous reports from the local and US press, former Iraqi President Jalal Talabani gave his 'implicit approval' for Hussein's execution, an...

Iran: Delara Darabi has now been scheduled for execution

Delara Darabi has now been scheduled for execution, according to the Iranian newspaper Etemad on 18 April, according to another source on 20 April. She was convicted of murdering a relative when she was 17. Unless the Judiciary intervenes, she can now escape execution only if the woman’s entire family accept payment of diyeh, or blood money. One of the familly is said to be undecided. Iran is a state party to the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which prohibit the use of the death penalty against people convicted of crimes committed when they were under 18. RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible: - expressing concern that Delara Darabi is in imminent danger of execution for a crime committed when she was under 18; - calling on the authorities to halt the execution of Delara Darabi immediately, and commute her death sentence; - reminding the authorities that Iran is a state part...

Tibetan protesters executed for Lhasa riot killings

Tibetan exiles have reported the first executions of those convicted for rioting last year in Lhasa, with at least two people put to death in a rare implementation of capital punishment in the restive region. Two Tibetans convicted of arson and sentenced to death in April were executed on Tuesday morning in Lhasa, reported The Tibetan Centre for Human Rights and Democracy, which is based in the Indian town of Dharamsala—the home in exile of the Dalai Lama. It said that Lobsang Gyaltsen and Loyak had been sentenced to death for their part in setting fire to five shops in the Tibetan capital, killing seven people, in the riot that rocked Lhasa in March last year. Officials say that 21 people — including three Tibetan protesters — died in the violence, which embarrassed Beijing just as it was preparing to stage the Olympic Games and prompted a security crackdown across the Himalayan region. The body of Mr. Gyaltsen had been returned to his family and then submitted to a river burial—an un...

Iran: Prisoner of conscience Mohsen Amir Aslani hanged for ‘different interpretation of Quran’

Mohsen Amir Aslani NCRI - The Iranian Resistance calls on the UN High Commissioner for Human Rights and the Human Rights Council, as well as all international human rights organizations to strongly condemn the execution of prisoner of conscience Mr Mohsen Amir Aslani on charges of “corruption on earth; changing Islam’s principles and secondary laws; and new interpretation of Quran”.  It further calls for adoption of binding decisions against the growing number of arbitrary executions by the religious fascism ruling Iran. Mr. Amir Aslani, 37, who had been in prison since eight years ago, was once sentenced to four years in prison which was later commuted to twenty-eight months. However, as more fabricated charges were brought against him, the head henchman Judge Salavati condemned him to death. The Iranian regime has refraining from handing over the body of this prisoner to his family through stonewalling and offering contradictory answers to them. The execution...

Louisiana Supreme Court Frees Death Row Prisoner, Calling Evidence Against Him “Scientifically Indefensible”

The decision affirms a lower court’s ruling nullifying Jimmie “Chris” Duncan’s 1998 first-degree murder conviction. Duncan was convicted based in part on forensic evidence that is now widely regarded as junk science. Former Louisiana death row inmate Jimmie “Chris” Duncan is officially a free man following a unanimous ruling Monday by the Louisiana Supreme Court. In the opinion, justices upheld a lower court’s decision to toss out Duncan’s 1998 conviction for killing his former girlfriend’s toddler, Haley Oliveaux, citing flawed forensics practices used to convict him. 

Thailand | Australian man charged with murder after dead 17-year-old girl found in suitcase

An Australian man has been charged with murder after the body of a 17-year-old girl was found in a suitcase in Thailand. Police in the coastal city of Pattaya said they found Tunchanok Donhomla "stuffed" in the bag, which had been discarded near a railway track, in the early hours of Saturday. Thai police said they arrested Simon Peter Carman at Bangkok's Suvarnabhumi Airport in connection with the death as he was allegedly "preparing to flee the country." He denies the charges. In a message issued to the victim's family after his arrest, Carman said: "I feel bad for what happened to your daughter. It was out of my control."

Halfway through the year, Saudi Arabia has already executed nearly 100 people

Almost 100 people executed so far this year as dozens more remain on death row for drug-related offences Saudi Arabian authorities have executed nearly 100 people so far this year, including at least 61 for drug-related offences, the latest of which was on 18 June. In response, Dana Ahmed, Middle East Researcher at Amnesty International, said today: “It is halfway through the year and Saudi Arabia has executed nearly 100 people, a grim milestone exposing the authorities’ unconscionable and unlawful use of the death penalty. Of the 96 people put to death already in 2026, an astounding 61 were executed for drug-related offences; 39 of them were foreign nationals and 22 Saudi nationals.

Florida executes Dusty Ray Spencer

74-year-old man becomes oldest inmate executed in modern Florida history  A 74-year-old man convicted of fatally stabbing his wife became the oldest person executed in Florida’s modern history on Thursday, and the state is scheduled to execute another 74-year-old inmate next month.  Dusty Ray Spencer was pronounced dead at 6:10 p.m. following a 3-drug injection at Florida State Prison near Starke. Spencer was convicted of the 1992 stabbing death of his wife Karen. 

Tennessee Reduced Training in IV Placement in New Lethal Injection Protocol

The protocol that took effect in 2025 sheds new light on Tony Carruthers’ botched execution, when Dr. Mark Fowler spent nearly an hour trying, and failing, to place a secondary IV line Tennessee’s lethal injection protocol adopted a year and a half ago appears to include reduced training in IV placement. That’s the part of the process prison staff failed to complete last month before aborting the execution of Tony Carruthers. Filings from ongoing litigation over the protocol show concerns about the executioners’ training and qualifications aren’t new.