Edited by Carol S. Steiker and Jordan M. Steiker
Chapter 2: Deserving of death: the changing scope of capital offenses in an age of death penalty decline
This chapter examines the types of offenses that states continue to punish with death in an age of death penalty decline. It reviews the main categories of capital offenses and their distribution among death penalty states, highlighting the gap between the legislative availability of the death penalty, the frequency of capital sentences and the number of executions ultimately carried out. The chapter traces the gradual restriction of the scope of capital punishment as a precursor for abolition in tandem with the emergence of the ‘most serious crimes’ standard in international law. What constitutes a ‘most serious crime’ is contested, but the norm has successfully disseminated the idea of exceptionality as a core consideration when determining whether a death sentence is authorized. The development of a ‘worst of the worst’ requirement in death sentencing decisions stands in contrast with a few states’ adhesion to a broad range of capital offenses. The curtailing of death eligible offenses in an age of death penalty decline has been counter-balanced in recent years by the creation and revival of capital crimes in response to the threat of terrorism and offenses against the state more generally. The multiplication of such prosecutions does not, however, necessarily foreshadow a major shift in global trends tending towards a reduced reliance on capital punishment. The enactment of capital anti-terrorism laws has not generally translated into more executions (though there are notable exceptions). This phenomenon is likely to accentuate the paradox of many death penalty states: virtually no retentionist states are retentionist for the full panoply of offenses for which their law authorizes death. The survival in the law of capital offenses for which no executions have been carried out in many years indicates states’ attachment to a non-utilitarian, symbolically driven view of capital punishment, which is presumed to fulfill denunciation and deterrence purposes even in the absence of significant implementation.
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