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Paul Kaplan

The death penalty, also referred to as capital punishment, is the process whereby a state government orders a sentence of death for a person found guilty of a particular set of criminal offenses. In the United States, the primary capital crime is first-degree murder with an additional aggravating factor, usually called a “special circumstance” (e.g., murder of a law enforcement officer). Capital punishment is a complex process that includes a criminal charge, an involved legal process, sentencing, special “death row” prison housing, post-conviction appeals, and the ultimate execution of the defendant. Persons sentenced to death are called condemned. Execution refers specifically to the process in which the defendant is killed. Capital punishment has been practiced throughout human history, with considerable variation across eras and regions. In the last 50 years, the use of capital punishment has declined across the globe, and there are relatively few countries that use it regularly as a form of punishment, most notably China. Some countries have abolished the death penalty completely, such as all member states of the European Union. Most other countries have seen a decline in its use. For instance, only 31 out of 50 states in the United States currently have death penalty statutes (there are also federal death penalty statutes, which are rarely used). The other 19 U.S. states are referred to as “abolitionist.” The “modern era” of capital punishment in the United States was spurred by two important Supreme Court cases. The Furman v. Georgia (1972) decision ruled that arbitrariness in the application of the death penalty deemed its use unconstitutional. The reversal of that ruling four years later in Gregg v. Georgia (1976) reestablished the death penalty in America, and experts refer to the modern era as 1976 to the present.

Article

The dawn of the 21st century marked a turning point in the history of the American death penalty. Politically, the death penalty seemed vulnerable. A wave of abolitionism not seen since the Progressive Era took hold in the 2000s, as six states abandoned the death penalty, and governors in five others instituted moratoria, promising to use their executive power to stay all executions while they remained in office. While the Supreme Court remained committed to the constitutionality of the death penalty, it slowly chipped away at it in a series of decisions that narrowed the range of persons whom the state could execute. Public support for the death penalty, already in decline during the late 1990s, continued to fall in the 21st century. A number of factors depressed support for the death penalty to levels not seen since the early 1970s: a decline in violent crime and fear of crime; highly publicized DNA-based exonerations of death-row inmates; and wariness of the cost of maintaining the death penalty, particularly during the great recession of the late 2000s. The use of the death penalty was declining as well. The expansion of life without parole as an alternative punishment in the 1990s and 2000s gave juries in some states harsh alternatives to death sentences that they did not previously have. Longer-term changes to the judicial and penal administration of the death, meanwhile, continued to make the path between conviction and execution longer and more difficult for state officials to traverse. Most offenders sentenced to death since the 1970s were not (or have not yet been) put to death, and the average wait on death row for those who have been executed has grown to over a decade and a half. Growing problems with the practice of lethal injection, meanwhile, have posed new problems for states seeking to execute capital defendants in the 2000s, producing new legal battles and bringing executions nationwide to a temporary halt in 2007–2008. The 2016 election of Donald J. Trump to the presidency of the United States, however, may portend a slowing or reversing Americans’ 21st-century turn away from the death penalty.