Public Law & Legal Theory
The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states—states that have historically carried out few or no executions—probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and customary international law, practiced illicitly by rogue nations, and defended only by a handful of conservative academics seeking attention. Within retentionist states, the transition to abolition will most likely occur as a result of elite political leadership and ordinary acts of resistance. Experience suggests that abolition of the death penalty is rarely the result of loud and explicit democratic politics, but is instead more often the product of counter-majoritarian, at times elite-driven judicial or political maneuvers. Abolition is rarely an issue that builds political capital for emerging leaders, but instead one that requires using existing political capital. Another important but rarely discussed factor that promotes abolitionist reforms are ordinary acts of resistance by those who are either knowingly or unconsciously uncomfortable with capital punishment or truly opposed to the death penalty. These men and women—a clerk at the county courthouse, an employee at the local police department, a secretary in the prosecutor’s office, sometimes even a judge or law clerk—slow death penalty cases down and effectively undermine the machinery of death. Neither of these two factors are especially good topics for elaboration since both take place below visibility. Yet they both play important roles and will likely push retentionist states at the cusp into the abolitionist camp, continuing the national and global trend toward greater abolition of the death penalty.
Bernard E. Harcourt, "Abolition in the U.S.A. by 2050: On Political Capital and Ordniary Acts of Resistance," University of Chicago Public Law & Legal Theory Working Paper, No. 239 (2008).