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In the United States, the long road to abolition of the death penalty

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With 18 executions in 2022 carried out by a handful of conservative states, the decline in the death penalty continues in the United States. But two years after Joe Biden’s campaign promise to abolish it at the federal level, the file is slipping, blocked by public opinion still divided and numerous legal obstacles.

2023 has barely begun when the grim counter of the death penalty has opened in the United States. Amber McLaughlin, 49, sentenced in 2006 for the murder of her ex-partner, was executed on Tuesday January 3 at Bonne Terre Penitentiary, in the state of Missouri. The American is the first transgender person to be executed in the country.

The news, experienced as a failure by anti-death penalty activists who hoped until the last moment for clemency from the state governor, spoils the results of the previous year. According to the annual report of the Death Penalty Information Center (DPIC), the reference body on the issue, 18 people were executed in 2022, the lowest number since 1991 – excluding the two years of pandemic .

“Only 11 executions were recorded in 2021, but the Covid-19 had completely shut down the judicial system”, explains Simon Grivet, specialist in the judicial history of the United States at the University of Lille. “The figures for 2022, on the other hand, confirm a downward trend for twenty years. This is the eighth consecutive year that the number has remained below the 30 mark. more.”

The number of death penalty sentences is also falling, with 20 people sent to death row in 2022, according to the DPIC – a far cry from 295 in 1998. United, but this is done over a very long time”, greets Simon Grivet.

Executions concentrated in six states

Officially, 27 out of 50 US states still include the death penalty in their laws, but the list of those who actually use it keeps shrinking. “This year, all the executions were concentrated in six states: Texas, Oklahoma, Arizona, Missouri, Alabama and Mississippi”, details Simon Grivet.

“These are therefore mainly southern states, located in what is called the ‘belt of the Bible’. These are conservative territories where rigorous Protestantism and the Christian religion are omnipresent”, he recalls. . “The death penalty is strongly rooted there because the population firmly believes in the law of retaliation, ‘an eye for an eye, a tooth for a tooth’.”

Texas alone has thus executed nearly 600 prisoners since 1982. Alabama, meanwhile, holds the record for the number of prisoners on death row reported to its population with 166 people.

Contrary to this dynamic, ten states have not carried out a single killing in the last ten years even though their laws continue to allow it. In March 2021, Virginia became the first southern state to abolish the death penalty. Three others – California, Pennsylvania and Oregon – have had a moratorium on executions in place since 2019. “A simpler decision to take than abolition because a simple decree from the governor is enough”, notes Simon Grivet.

“Overall, today, we are facing an increasingly abolitionist country but confronted with States which remain very attached to it”, summarizes the specialist.

A divided public opinion

“At the same time, American society is also becoming more and more progressive on the issue, even if it remains very divisive,” he continues. According to a poll by the American Gallup Institute published in November 2022, 55% of Americans say they support the death penalty for those convicted of murder, compared to 60% in 2016 and 70% in 2003.

A drop which can be explained, according to Simon Grivet, by a combination of factors. “First, repeated miscarriages of justice played an important role,” he said. As an argument during his campaign for the abolition of the death penalty in Virginia, the Democratic Governor Ralph Northam thus regularly evoked the case of Earl Washington. This disabled man, sentenced to death in 1984, narrowly escaped execution before being finally acquitted in 2000.

“But above all, the repeated scandals linked to ‘failed’ executions, during which prisoners were put to death very slowly and in great pain, have greatly shaken public opinion”, continues Simon Grivet. And on this question, the year 2022 will have brought its share of controversy. “This is the year of botched executions,” denounced The New York Times in an editorial in mid-December, estimating that “more than a third of attempted executions” were mishandled.

The daily returns in particular at length to the case of Joe Nathan James. Sentenced in 1999 in Alabama for the assassination of his ex-partner, this 50-year-old man was executed on July 28. His execution lasted more than three hours because the prison staff were unable to insert the IV to perform the lethal injection.

“The United States has used the system of lethal injections since the 1970s. At the time, it was considered a perfect mode of execution, guaranteed without pain”, recalls Simon Grivet. “But the executioners are not doctors. And for ten years, the problems of badly prepared injections, with bad dosages, have multiplied.”

“Each time, it has a strong media impact and deeply shocks the population. It has become one of the major arguments for activists against the death penalty”, insists the specialist. This discourse being far from making the few states that still practice the death penalty back down, some say they are thinking about new methods of execution. In Alabama, for example, the governor has announced that she wants to experiment with executions using lethal gas.

A new democratic fight?

Faced with the evolution of public opinion, the death penalty is also increasingly invited into the political debate between Democrats and Republicans. “While all the states that still practice it are governed by Republicans, for the past few years the Democrats – and Joe Biden on the front line – have become openly defenders of the abolitionist cause”, notes Simon Grivet.

Thus, Virginia and Colorado backed down on capital punishment when they moved to the Democratic camp after years of Republican government. For his part, Joe Biden went so far as to promise the abolition of the death penalty at the federal level during his campaign for the 2020 presidential election. While each state is free to adopt its own legislation on the issue, certain crimes are in fact dealt with by the federal judicial system – this is the case, for example, of terrorist acts or those involving several States at the same time.

“Two years later, the president’s commitment remains very timid,” said Simon Grivet. In July 2021, he certainly put a moratorium on federal executions, while the administration “reviews its policies and procedures”. But at the same time, the White House continued to demand the death penalty in certain national cases, in particular against Djokhar Tsarnaev, author of the Boston attack.

2,414 people on death row

More recently, in December, the Biden administration also opposed an international moratorium on the death penalty before the United Nations, provoking the ire of opponents of the death penalty. “The United States does not consider the legal use of this form of punishment as contravening respect for human rights”, justified the American diplomats.

“At the end of the health crisis, the president found himself faced with an increase in cases of violence and a rise in the feeling of insecurity. This made it difficult to hold an abolitionist discourse”, notes Simon Grivet. “And, quickly, with the horizon of the mid-term elections, he certainly preferred to cultivate a certain ambiguity in the face of a population still very divided on the question.”

Even if Joe Biden decided to go on the offensive to keep his promise, the path would be strewn with obstacles. “Abolishing the death penalty at the federal level can only pass by a vote of Congress. It is mission impossible given its current composition”, explains the specialist. “The other solution would be an amendment to the Constitution. This time, it would have to go through the Supreme Court. Very conservative, it has already ruled many times in favor of the death penalty. It is therefore even more unrealistic.”

“Eventually, we will certainly arrive at a complete abolition of the death penalty. But I think it will be done State by State. And it will take time… maybe 20 years, maybe 50”, concludes- he. Currently, 2,414 people are on death row; according to the Death Penalty Information Center, 30 executions are scheduled for 2023.

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