The Beginning of the End?
Carol S. Steiker and Jordan M. Steiker
Is nationwide abolition of capital punishment a realistic prospect in the United States? This question has taken on new urgency as the United States has become increasingly isolated in its retention and use of the death penalty. Most nations of the world—including many third-world countries—have abolished the death penalty, leaving the United States as the only Western industrialized nation in the world to formally retain the practice. Moreover, our retention is not merely formal: even recently, after death sentences and executions have declined for several years in a row, we have witnessed, on average, approximately one execution each week in the United States. The continued willingness of the United States to reject the growing consensus of the West that capital punishment constitutes a violation of human rights has transformed the death penalty from a dramatic but nonetheless tiny aspect of domestic criminal justice policy into a highly charged symbol of America's respect for its peer nations and for international human rights.
This new significance of America's death penalty practices is mirrored in recent decisions of the U.S. Supreme Court. In constitutionally outlawing the execution of offenders with mental retardation, the Court made pointed and controversial reference (albeit in a footnote) to the amicus brief filed on behalf of the European Union.1 In its decision a few years later, outlawing the execution of juvenile offenders, the Court expanded on the significance of the actions of other constitutional democracies with respect to the death penalty.2 Moreover, the Court noted that in the dozen years preceding its opinion, only six other countries had acknowledged executing juvenile offenders (the Democratic Republic of the Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen) and that even these countries