Published On: Wed, Sep 16th, 2020

A Look at the State of the Nation on Capital Punishment

Capital punishment has been around long before our nation’s inception. However, based on a steady decline in executions and death sentences throughout a large portion of the country, the numbers beg the question of whether capital punishment will persist. 

Nationally, death penalty sentences and executions were fewer than 50 and 30, respectively, in 2019 – a steady decrease in both for the fifth year in a row. Twenty-nine states still have the death penalty on their books, but over 32 states have had either no executions in the past ten years or have abolished the death penalty completely. Of the 22 executions in 2019, nine of them took place in Texas, and the other 12 took place in six other states – Alabama, Florida, Georgia, Tennessee, Missouri, and South Dakota. 


Criminal defense attorney Patrick Woolley remarked, “Attorney General William Barr’s announcement that the federal government would resume executions is somewhat surprising, since there appears to be a national decline in the popularity of capital punishment.” At the time of Barr’s announcement, a federal execution had not taken place in over 16 years. Since 1977, there have been a total of three federal executions.  

The call for federal executions to resume met opposition by the courts, however. The United States Supreme Court upheld an injunction issued by a lower federal court, after Attorney General Barr instructed the Bureau of Prisons to begin single-drug lethal injections using pentobarbital. Prisoners challenged the new protocol, arguing that it violated the Federal Death Penalty Act (FDPA) of 1994. In response, the court issued an injunction stopping the Government’s plan.

The FDPA requires federal executions to be carried out in accordance with the law of the State in which the imposed sentence took place, as opposed to Attorney General Barr’s instruction for single-drug lethal injection with pentobarbital. In direct opposition to the 1994 FDPA requirement, a federal rule adopted in 1993 by the Department of Justice required a uniform method and place for federal executions. However, because the FDPA and Department of Justice execution methods were in direct opposition to one another, how federal executions should be handled was unclear. This remained unclear over the years, being addressed again in 2005. At that time, the federal government cited the Department of Justice rule as the authority for the execution protocol to use. This litigation was stayed by the court in 2011 after the Department of Justice informed the court that it could not acquire the drugs necessary to implement the executions and that it would submit an amended protocol. No further action was taken until Attorney General Barr’s announcement in July 2019.

Regarding the current litigation arising out of the prisoners’ challenges to the federal government’s execution protocol, the prisoners prevailed on the FDPA argument and an injunction was issued on December 2, 2019. The Supreme Court upheld the lower court’s injunction. As instructed by the Justices of the Supreme Court to resolve the prisoners’ challenge with “appropriate dispatch,” it is likely the lower courts will heed the Court’s expectation sooner than later. 

While the protocol of federal executions is at the forefront of the federal court arena, many state courts and state legislatures are moving in the direction of abolishing the death penalty. Throughout the states, capital punishment legislation has addressed appellate and trial procedures, limited aggravating factors, and repealed death penalty laws. In 2019, New Hampshire abolished the death penalty, and California’s governor imposed a moratorium on executions. Similarly, on January 30, 2020, legislation in Virginia and Colorado addressed the death penalty. Colorado’s Senate passed a bill to abolish the death penalty, and Virginia’s Senate passed a bill to prohibit defendants with severe mental illness from being subject to the death penalty.

The United States Supreme Court has placed limits on the death penalty and its use in the states in significant ways in the past 15 years. The Court abolished the death penalty for juvenile offenders and the mentally disabled. Also significantly, the Court has required that juries – not judges – be the fact-finders who make the determination of capital punishment eligibility and whether to impose a sentence of death. In the wake of these limitations, the latest development on the federal level leaves a marked difference in many states’ trend toward limitations and abolishments.

Author: Sadaf Zain

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