Can we abolish the death penalty?

This week in North Philly Notes, Austin Sarat, editor of Death Penalty in Decline?, considers how attitudes about capital punishment have changed over the decades since Furman v. Georgia.

I have been studying America’s death penalty for almost 50 years. When I started doing so it seemed almost unimaginable that this country could, or would, ever give up its apparent love affair with capital punishment. In 1972, the United States Supreme Court brought a temporary halt to capital punishment in Furman v. Georgia. Four years later, however, the Court approved new procedures for deciding on death sentences and upheld the constitutionality of the death penalty. And by the 1990s, fueled by a “tough on crime” political climate, the number of death sentences and executions steadily climbed.

I have been inspired in my work on capital punishment by what Supreme Court Justice Thurgood Marshall wrote in Furman. He believed people supported the death penalty because they did not know very much about it. Marshall argued that the more people knew about the death penalty, the less they would like it. He thought that scholars could play an important role in the work of educating the public about the grim realities of state-sponsored killing.

So I had my charge. Write about the workings of the death penalty system. Inform my fellow citizens about what the government does when it puts people to death.

I have written many books and scholarly articles about America’s death penalty. Recently, I added to my repertoire a series of op eds and commentaries designed to make my scholarship accessible to a public audience. I have not been alone in this work. Many distinguished scholars have lent their voices to the conversation about capital punishment. Lawyers, activists, and politicians have done the crucial work of mobilizing opposition to state killing.

They have alerted us to the fallibility of, and flaws in, the death penalty system. Sixty-three percent of the American public now believe that an innocent person has been executed in the past five years, and confronting the sheer fact of miscarriages of justice has led many Americans to reconsider their views about the death penalty. The fear of executing the innocent, the continuing specter of racial discrimination in the death penalty system, and the difficulties encountered with lethal injection executions have led to the perception that the death penalty system is broken from start to finish.

As a result, what was unimaginable 50 years ago is today very much on the horizon of possibility, namely that the United States may soon find a way to live without the death penalty. Indeed, it is fair to say that we are in the midst of a national reconsideration of capital punishment and on the road to its abolition. Signs of progress in the fight against capital punishment are everywhere.

Since 2007, more states have abolished the death penalty than at any other 17-year period in American history. As the Death Penalty Information Center noted in its 2022 annual report, “public support for capital punishment and jury verdicts for death remained near fifty-year lows. Defying conventional political wisdom, nearly every measure of change—from new death sentences imposed and executions conducted to public opinion polls and election results—pointed to the continuing durability of the more than 20-year sustained decline of the death penalty in the United States.”

The Death Penalty in Decline? looks back over the last half-century and offers an analysis of the enduring significance of Furman. It takes up the facts of the present moment in the hope of offering a portrait of where we are on the road to abolition. It continues the work that Justice Marshall inspired.  

“‘Beyond the Law’ and above the law”

This week in North Philly Notes, Charles Upchurch, author of “Beyond the Law,” writes about the first public debate in the Commons over the ethics of punishing sex between men.

The first sustained debate in the British Parliament (and likely in any parliament anywhere) over the ethics of punishing sex between men occurred 180 years ago and no one has remembered it—at least until now. That’s the premise of “Beyond the Law,” which explains how and why this happened. Most historians think this time frame is far too early for anything like this to have occurred, since it is too early for modern sexual identities to have formed, let alone for there to have been a political effort organized around them. But a modern homosexual identity is not needed to have an ethical objection to the execution of individuals for a private consensual act, which is what sodomy was in some cases. In the first decades of the nineteenth century, the law allowed for such executions. While many upper- and middle-class men did publicly rail against sodomy as “the worst of crimes” and supported the executions, others, drawing on enlightenment philosophy or more latitudinarian religious ideas, thought such executions were more immoral, perhaps far more immoral, than the acts themselves. These men included Lord John Russell, leader of the Whig majority in the House of Commons, who eventually argued against executions for sodomy in 1841, even as he kept the government at a distance from the private member’s bill that was the focus of the reform effort.

Russell, like almost every other politician of his era, did not want to publicly speak about sex between men, but broader events were forcing him and the government to do so. That was because the death penalty was being eliminated for hundreds of crimes. Up to the start of the nineteenth century, it was the terror of the gallows that was to scare individuals away from committing crime. Theft of even small amounts might be punished with death, since there had previously been only minimal systems for policing or imprisonment. But that policing and incarceration infrastructure was created in the early nineteenth century, and the number of capital crimes tumbled, so that by the end of the 1830s there were only slightly more than a dozen. Those capital crimes included murder, attempted murder, treason, piracy, rape, a few minor crimes that were missed by previous reform legislation, and sodomy, which could be a private consensual act. With the death penalty now gone for almost everything else, the anomaly of retaining it for sodomy was glaring for many. But almost no man wanted to be the person who stood up on the floor of the House of Commons to argue for the lessening of the penalties for sex between men, knowing that some of the most evangelical members of that body would likely denounce them for defending immorality (as did eventually happen).

The reform effort did happen, though, and two exceptional men stepped forward to shepherd the bill through the Commons in a process that played out over the better part of a year. They had the prestige of Jeremy Bentham behind them since, contrary to what has been written by other scholars, Bentham published some of his arguments against the punishment of sex between men in his lifetime. He did so in a way that would likely only be understood by legal experts, but those were exactly the people who were drafting the recommendations to parliament on which laws to amend, and which ones to retain without alterations. Bentham’s ideas of legal reform were shaping the entire process of eliminating the death penalty within the English criminal law, and his arguments against punishing sex between men in general, let alone executing men for a private consensual act, were known to the men shaping the reform.

Reasoned arguments were not enough to motivate a man to sponsor such a bill, to risk his reputation, and to speak publicly against such an injustice. It can be proven that both Jeremy Bentham and Lord John Russell agreed with this reform, but neither man would publicly champion it. A judge at the time privately told Russell that he was “convinced that the only reason why the punishment of death has been retained in this case is the difficulty of finding any one hardy enough to undertake what might be represented as the defense of such a crime.” And that brings us to the most remarkable discovery in ‘Beyond the Law’, because the two men who were brave enough to do this were inspired to act not primarily through reasoned arguments, but through the emotional and affective bonds of family. Fitzroy Kelly, a newly elected Tory MP, grew up in economic hardship, only saved from poverty through the work of his mother, the novelist Isabella Kelly. The Kelly family was helped repeatedly by the gothic novelist Matthew Gregory Lewis, whose sexual interest in men was remarked on at the time. Moreover, William Kelly, Isabella’s son and Fitzroy’s brother, has been identified by scholars at least since the 1930s as Matthew’s strongest emotional attachment. Matthew’s sister was also married to the brother of the other co-sponsor of the 1840 and 1841 legislation, the lawyer and abolitionist Steven Lushington. It was Lushington, also, more than a decade before, who had worked with Lady Byron during her separation from Lord Byron, and it was Lushington who had raised the threat of accusing Byron of committing sodomy within his marriage as leverage in the separation proceedings. This web of family connections, cemented by love more than sex, is dense, convoluted, and still in significant parts obscure and unrecoverable. Nevertheless, ‘Beyond the Law’ recounts much of it, and tells a story wholly different from anything previously recovered for the early nineteenth century. It pieces together many public and private aspects of the first debates in the nineteenth century over the ethics of punishing sex between men.