 Found a word you're not familiar with? Double-click that word to bring up a dictionary reference to it. The dictionary page includes an audio sound file with which to actually hear the word said. |
Further implications
At the end of 2020 there appeared to be a move away from capital punishment in the United States. More American states had abolished the death penalty or gone ten years without an execution, more counties had elected prosecutors opposed to the death penalty and fewer death sentences than in any year prior to 1972, the year in which the Supreme Court struck down United States death penalty laws in 1972. Despite the thirteen executions carried out by the federal administration, fewer executions were carried out in 2020 than in any year in the preceding three decades.
One way for the punishment to be abolished across the United States would be for all state legislatures and the federal government to remove the penalty. This is like the situation in Australia where capital punishment (now abolished in this country) came under the jurisdiction of the states. It was state criminal codes that determined whether these penalties were able to be applied and so state parliaments had to pass legislation altering each of these codes for capital punishment in Australia to stop. Queensland was the first state to abolish the death penalty for all crimes in 1922 and New South Wales became the last in 1985.
Currently in the United States 28 states apply the penalty and 22 have abolished it, though many of the states that could still apply the penalty have not done so for years and have not sought to execute convicted prisoners on death row.
In addition, until the recent spate of executions during the final months of the Trump administration, capital punishment had fallen out of favour with successive federal administrations. Unlike Australia, United States federal courts can inflict the death penalty and federal administrations can sanction the implementation of the punishment. Thus, removing the penalty across the country would require its abolition in the remaining states that allow it and by the federal Supreme Court. However, if the Supreme Court were to strike down the death penalty as unconstitutional this would make it illegal to apply it any American state as all must operate under the directions laid down by the country's constitution. Thus, in 1972, the Supreme Court ruled the death penalty unconstitutional as it violated the constitutional amendment that prohibited 'cruel and unusual punishments.' This led to executions being outlawed across the country for four years, until a succession of states altered their procedures so that the manner of their prosecutions and executions fell within the terms the Supreme Court judged constitutional. The Supreme Court made a ruling in 1976 which validated the implementation of the death penalty and saw it reapplied in many American states.
Crucially, a Supreme Court ruling has made it a judgement of America as a whole as to what constitutes 'cruel and unusual punishment'. Since 1958, The Supreme Court, in attempting to determine whether a punishment is 'cruel and unusual', asks whether the punishment coincides with society's 'evolving standards of decency.' Thus, the Supreme Court has committed itself to assessing current American standards on the issue when determining the constitutional validity of the death penalty.
Given the growing number of states that have abolished the penalty, its declining use among those states that could still apply it, and the general infrequency with which it has been used as a federal punishment, the death penalty no longer seems to coincide with the standards of many United Sates jurisdictions. This suggests that when next it is challenged before the Supreme Court on the basis of violating the Eighth Amendment, it may again be overturned. The complicating factor, however, is the composition of the Supreme Court. During President Trump's four-year term, three vacancies on the Court have been filled by conservative judges who favour the death penalty, tipping the balance on the Court in this direction. Judges on the United States Supreme Court serve for life and so this pro-death penalty predisposition has been entrenched in the Court. Many more states may need to independently abolish capital punishment before a majority on the Supreme Court rule that the 'standards of decency' on the question have changed across the country.