Capital Punishment and American Exceptionalism
CAROL S. STEIKER
IN 1931, THE YEAR before his appointment to the U.S. Supreme Court, Benjamin Cardozo predicted that “perhaps the whole business of the retention of the death penalty will seem to the next generation, as it seems to many even now, an anachronism too discordant to be suffered, mocking with grim reproach all our clamorous professions of the sanctity of life.”1 The operative word here has turned out to be “perhaps,” given that here we are in the United States almost three-quarters of a century later with capital punishment still a robust institution. But, ironically, Cardozo's prediction proved more or less true for the rest of the Western industrialized world. Soon after World War II and the spate of executions of wartime collaborators that ensued, the use of the death penalty began to decline in Western Europe, and capital punishment for ordinary crimes has at this point been abolished, either de jure or de facto, in every single Western industrialized nation except the United States.
At the same time, the countries that most vigorously employ the death penalty are generally ones that the United States has the least in common with politically, economically, or socially, and ones that the United States is wont to define itself against, as they are among the least democratic and the worst human rights abusers in the world. In recent years, the top four employers of capital punishment were China, Iran, Saudi Arabia— and the United States.2 Moreover, in the past twelve years, only seven countries in the world are known to have executed prisoners who were
I am grateful to participants in the University of Oregon's conference “The Law and
Politics of the Death Penalty: Abolition, Moratorium, or Reform?” to participants in work-
shops at Harvard Law School, the University of Texas School of Law, and Suffolk University
Law School, to discussants from among the Harvard Neiman Fellows of 2000–2001, to
participants in Michael Ignatieff's seminar on American exceptionalism at the John F. Ken-
nedy School of Government at Harvard University in the fall of 2002, and to Jordan Steiker
for helpful comments. A version of this essay was first published in the Oregon Law Review
at 81 Or. L. Rev. 97 (2002).
1 Benjamin N. Cardozo, Law and Literature 93–94 (1931).
2 Amnesty Int'l, Death Penalty around the World, Facts and Figures on the Death Penalty
(Sept. 2002), at http://www.amnesty-usa.org/abolish/world.html.