Peculiar Institution: America’s Death Penalty in an Age of Abolition

David Cole writes:

One popular explanation for the survival of the death penalty in America is that Americans are more bloodthirsty than Europeans. Garland shows that the data suggest otherwise. Large majorities in many European countries favoured the death penalty even as it was being abolished. When Germany outlawed capital punishment in its 1949 constitution, two-thirds of its population were still in favour. François Mitterrand’s administration abolished it in 1981, ignoring the 73 per cent of the French population who approved of it. In the UK, 76 per cent of respondents backed it in 1995, nearly three decades after abolition. Meanwhile, about 65 per cent of the American public supported it in 2001. So the question remains: why has the US not taken the final step and put an end to capital punishment? The reasons, Garland thinks, have more to do with the structure of American government than any fundamental difference between American and European culture. In most European countries, political elites were able to abolish the death penalty with a single piece of legislation, despite substantial popular support for it. Because of the US commitment to federalism, which allows states substantial independence with regard to criminal justice, the issue is not susceptible to national resolution, but must be worked out separately by each of the 50 states. This means that the US is comprised of pro-death penalty states, mostly in the South; abolitionist states, mostly in New England; and ambivalence and confusion everywhere else.

(LRB 3 March 2011)