Gavin Howe
The death penalty is a highly controversial mode of punishment, with some countries continuing to implement it despite international human rights laws prohibiting its use for crimes committed by minors. The death penalty is the subject of ongoing debate, with organisations like Amnesty International actively opposing it. The power to change death penalty laws lies with the legislative and executive branches of governments, including state legislatures, Congress, governors, and presidents. In the US, the Supreme Court has played a significant role in shaping death penalty laws, while individual states have their own varying procedures and policies.
| Characteristics | Values |
|---|---|
| Country | United States |
| State | Idaho, Florida, Tennessee, Georgia, Alabama |
| Federal Level | The Attorney General, Department of Justice |
| State Level | State attorneys general, district attorneys, governors |
| Supreme Court | Rulings on proportionality, cruel and unusual punishment, intellectual disability, juvenile offenders, aggravating circumstances |
| Jury Involvement | Death-qualified prospective jurors, hung jury |
| Execution Methods | Lethal injection, firing squad, hanging, electrocution |
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What You'll Learn
The US Supreme Court
The Supreme Court is responsible for ensuring that the use of the death penalty by states adheres to fundamental rights. It is the final arbiter of whether the Constitution is being followed. While states may be more protective of individual rights than what is mandated by the federal Constitution, they cannot fall short of those protections.
The Eighth Amendment to the US Constitution, which prohibits cruel and unusual punishment, is often considered by the Supreme Court in the context of the death penalty. In Coker v. Georgia (1977), the Court held that a penalty must be proportional to the crime, or else it violates the Eighth Amendment. The Supreme Court looks at three factors in its proportionality analysis: the gravity of the offence and the stringency of the penalty, how the jurisdiction punishes other criminals, and how other jurisdictions punish the same crime.
The Supreme Court has also ruled on the constitutionality of specific methods of execution. In Baze v. Rees (2008), the Court held that lethal injection does not constitute cruel and unusual punishment. In Kansas v. Marsh (2006), the Court clarified that states may impose the death penalty when the jury finds aggravating and mitigating factors to be equally weighted, without violating the principle of individualised sentencing.
The Supreme Court has also addressed the death penalty in relation to specific categories of defendants. In Roper v. Simmons (2005), the Court banned the death penalty for juvenile offenders, citing teenagers' lack of maturity and responsibility, greater vulnerability to negative influences, and incomplete character development. In Atkins v. Virginia (2002), the Court decided that executing intellectually or developmentally disabled criminals violates the ban on cruel and unusual punishment, as their cognitive disability lessens the severity of the crime.
In addition to these cases, the Supreme Court has considered numerous other death penalty cases, including Kennedy v. Louisiana (2008), Ring v. Arizona (2002), Bobby v. Bies (2009), and Furman v. Georgia (1972). The Court's decisions have had a significant impact on death penalty laws in the US, and it continues to play a crucial role in interpreting and shaping this area of law.
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State legislatures
In recent years, state legislatures have been active in proposing and enacting legislation related to the death penalty. For example, in 2025, Idaho's legislature passed a bill making the firing squad the state's primary method of execution, reflecting the state's stance on capital punishment. Similarly, Florida has been at the forefront of enacting legislation related to the death penalty, with multiple bills being signed into law in recent times.
The authority of state legislatures to shape death penalty laws is evident in their ability to expand or limit the use of capital punishment. They can introduce bills that modify execution protocols, address secrecy surrounding executions, and alter aspects of capital trials. State legislatures also have the power to repeal or reinstate the death penalty within their states, demonstrating their direct influence on the applicability of capital punishment.
In certain states, the legislature may prescribe the manner of execution, ensuring it does not inflict unnecessary or wanton pain. This was affirmed in the Kansas v. Marsh case, where the Supreme Court held that hanging and electrocution were not impermissible methods of execution. State legislatures can also address specific aspects of death penalty cases, such as intellectual disability claims, by passing legislation that modifies the standard of proof required.
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The US Congress
Federal Death Penalty Legislation
Oversight and Review
Congress plays a crucial oversight role in scrutinizing the implementation of federal death penalty laws. It can hold hearings, conduct investigations, and request reports from relevant agencies, such as the Department of Justice, to ensure compliance with legal and ethical standards. This oversight function allows Congress to identify potential issues, assess the effectiveness of existing laws, and propose necessary changes.
Influence on State-Level Legislation
While states have their own death penalty laws, Congress can indirectly influence these laws through various means. Firstly, Congress can incentivize states to adopt specific policies or practices related to capital punishment by offering funding or implementing conditional grant programs. Secondly, Congress can pass legislation that encourages uniformity among states, such as setting minimum standards for fair trial procedures or evidence collection in capital cases. Additionally, Congress can hold hearings and invite state legislators and experts to testify, providing a platform for the exchange of ideas and best practices that can shape state-level laws.
Supreme Court Nominations
The US Senate, as part of Congress, plays a pivotal role in confirming nominations to the US Supreme Court. As the Supreme Court interprets the constitutionality of death penalty laws and sets precedents through its rulings, the Senate's role in vetting and confirming justices has a significant impact on the legal landscape surrounding capital punishment. For example, the Senate's confirmation of justices in cases like Coker v. Georgia, Kennedy v. Louisiana, and Atkins v. Virginia helped shape the Court's rulings on proportionality, cruel and unusual punishment, and intellectual disability, respectively.
Public Discourse and Awareness
Congress serves as a platform for public discourse and awareness regarding the death penalty. Through hearings, debates, and reports, members of Congress can highlight concerns, share perspectives, and engage with stakeholders on both sides of the issue. This dialogue can influence public opinion and shape the broader context within which death penalty laws are considered and enacted at both the federal and state levels.
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The US President
President Biden, for example, commuted the sentences of 37 of the 40 most vile and sadistic rapists, child molesters, and murderers on Federal death row. He also allowed his Department of Justice to issue a moratorium on Federal executions, and his Attorney General, Merrick Garland, announced a moratorium in 2021 to review the federal execution protocols. Biden's aides say he supports death row inmates serving life sentences without probation or parole.
On the other hand, President Trump expanded the federal death penalty during his first term, and he has suggested that he would like to put drug traffickers and migrants who kill US citizens to death. Trump's Justice Department would only be able to pursue a capital case where the crime is legally authorized for the death penalty.
State legislatures and the US Congress frequently consider bills addressing death penalty issues, including legislation to repeal, reform, or expand capital punishment.
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The Attorney General
One of the key duties of the Attorney General is to encourage state attorneys general and district attorneys to actively seek the death penalty for all capital crimes. This includes providing guidance and coordinating with state and local law enforcement to align their policies and practices with federal objectives.
In terms of procedural aspects, the Attorney General is involved in reviewing and approving cases where the death penalty is sought. United States Attorneys must submit cases involving capital offenses to a centralized review process, regardless of their personal recommendation. This review process ensures that the death penalty is sought consistently and only in cases where it is legally authorized.
Additionally, the Attorney General is responsible for evaluating the conditions of confinement for offenders whose federal death sentences were commuted and determining whether they can be charged with state capital crimes. They also play a role in ensuring that states have the necessary resources, such as drugs for lethal injection, to carry out capital punishment.
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Frequently asked questions
The President of the United States, state legislatures, and the U.S. Congress can change the death penalty law. The President can issue executive orders to enforce the implementation of capital punishment and request that the Attorney General pursues the death penalty in all federal cases. State legislatures and U.S. Congress can consider and pass bills to expand, limit, abolish, or reinstate the death penalty.
The Attorney General is responsible for pursuing the death penalty in federal cases and can encourage state attorneys general and district attorneys to bring state capital charges. They also play a role in evaluating places of imprisonment and ensuring sufficient drugs are available for lethal injections in states that allow capital punishment.
Judges do not have the power to change the law, but they can obstruct or prevent the execution of capital sentences. In criminal cases, judges can impose prison sentences that are harsher than those demanded by the prosecution, but they cannot hand down the death penalty unless the accuser specifically seeks it.
International human rights law prohibits the use of the death penalty for crimes committed by individuals under 18 years of age. However, some countries still carry out such executions, which calls into question their commitment to respecting international law. International law and standards also prohibit the imposition of the death penalty after unfair trials and appeals.
