Edited by Jacy Reese Anthis and Kelly McNamara. Many thanks to the researchers who provided feedback or checked the citations of their work, including Amber E. Boydstun, Robert M. Bohm, Jeffrey L. Kirchmeier, Wayne Sandholtz, Frank R. Baumgartner, Sangmin Bae, and Andrew Hammel. Thanks also to Tom Beggs for discussion on case study methodology.

Abstract

This report aims to assess (1) the extent to which the anti-death penalty movement in the United States, especially from 1966-2015, can be said to have successfully achieved its goals, (2) what factors caused the various successes and failures of this movement, and (3) what these findings suggest about how modern social movements should strategize. The analysis highlights the farmed animal movement as an illustrative example of the strategic implications for a variety of movements. Key findings of this report include that a narrow focus on legal strategies can discourage the growth of a grassroots movement that may be more effective in the longer term and that legislative change is possible without public support.

Table of Contents

Introduction

The US anti-death penalty movement (ADPM) argues that the execution of criminals is immoral or otherwise undesirable. Its advocates therefore support, at least in part, an expansion of the moral circle to encompass convicted criminals, in the sense that they would share the right-to-life of non-convicts. Although there are important differences between the ADPM and farmed animal movement, there is a fundamental similarity between them: Advocates from both movements believe that the sentient beings they seek to protect are granted insufficient consideration, protection, or rights and that it is worth investing time and resources into securing more consideration, protection, or rights for them. Other features that affect the ADPM’s comparability with the farmed animal movement are listed below, but overall it seems that we can glean some strategic insight from the ADPM suitable for effective animal advocacy—that is, evidence on which animal advocacy strategies are most effective.^[1]

As with Sentience Institute’s case study of the US anti-abortion movement, this report makes no attempt to evaluate the goals of either movement. This report is exclusively about the strategy of social movements, and while we will discuss goals insofar as they are relevant to strategic discussion, we deliberately avoid any moral assessment.^[2]

This report provides a condensed history of the US ADPM with a focus on the 1960s to the present. For comparison, ADPMs in other countries are also considered briefly. After providing this history, the report draws tentative conclusions about which strategies seemed to be most effective for the ADPM and suggests potential implications for social movement strategy. The focus of this report is on strategic insights for the farmed animal movement, but some insights may be useful for other movements as well.

The focus on the US ADPM, rather than on ADPMs in other countries or the broader US prisoners’ rights movement (which includes other goals of prisoner benefit, e.g. better living conditions), was principally due to the greater availability of research and evidence from sociologists, legal scholars, historians, and political scientists. However, compared to the US focus of SI’s case study of the anti-abortion movement,^[3] it seemed especially worthwhile to incorporate at least some international comparison on the US ADPM, given that the US has retained the death penalty while 105 other countries have abolished its use.^[4] Europe is an especially important comparator because, since the 1970s, around half of the countries that have abolished capital punishment for all crimes have been European countries.^[5]

This report was mainly undertaken as exploratory analysis rather than being designed to test explicit hypotheses regarding strategic effectiveness. Nevertheless, the author hoped that the report would provide evidence for or against the claims regarding effective strategy made in SI’s previous two social movement case studies^[6] and would provide strategic insight into the foundational questions in effective animal advocacy.^[7] As was the case at the start of the author’s research into the US anti-abortion movement, the author believed that the US ADPM had mostly failed at achieving its goals and therefore that this report would provide evidence that, on average, the tactics used by the US ADPM should be avoided by the farmed animal movement.

In several other ways, this report borrows much of the methodology and framing of SI’s previous two social movement case studies.

This report uses the terms capital punishment and death penalty interchangeably, although sometimes it is necessary to distinguish between those sentenced to death and those who are actually executed. Likewise, unless otherwise specified, the terms convict, criminal, and prisoner are used interchangeably, since these groups almost completely overlap in the context of this report. This usage is not intended to deny that some criminals are never convicted or that some prisoners have been wrongly convicted. Unless otherwise specified, the term ADPM is used to encompass both advocates of the total abolition of capital punishment and advocates of a national or statewide moratorium (suspension) on executions, even though some advocates of a moratorium may not support a permanent ban. De jure (legally enforced) abolition is sometimes distinguished from de facto abolition, where executions have ceased in practice but have not been legally banned. The term “grassroots” is used to refer to elements of the movement that include non-professionals, where broad participation is encouraged, and where there is low central control.

Summary of Key Implications

A single historical case study does not provide strong evidence for any general claim on social change strategy; the value of these case studies comes from providing insight into a large number of important questions.^[8] This section lists a number of strategic claims supported by the evidence in this report:

• Highly salient judicial changes may provide momentum to opposition groups.
• After controversial Supreme Court rulings, public opinion may move away from the preferences implied by those decisions.
• Social movements should proactively ensure that professionalization and shifts towards legal strategies do not discourage the growth of grassroots efforts (e.g. broad participation, non-professional, decentralized) that may be more effective longer-term.
• Legislative change is surprisingly tractable without public support, though public opinion has a significant effect.
• It is probably easier to introduce and implement unpopular laws if voters in the state do not have ready access to ballot initiatives or referenda.
• Once influential international bodies adopt a value, they may exert pressure on institutions in other parts of the world to adopt the same value.
• Abolition of a practice seems likely to encourage public opinion to gradually turn against that practice.
• Where eliminating a practice is intractable, it may be possible to suspend the practice pending substantial improvements or further research. However, the practice may be subsequently resumed without being substantially challenged.
• Social movements can collaborate to challenge institutions, though collaboration may be temporary or unreliable.
• Social change may be more likely to occur if credible professional groups advocate for change before broader participation and pressure is encouraged.
• As people become more aware of a topic, aggregate attitudes may shift, but polarization may also occur, and legislative change may become less tractable.
• Messaging that includes supplementary arguments attracts broader support. When using supplementary arguments, advocates should focus on issues that seem unlikely to be fixed without abolition of the targeted institution to minimize the risk that they will backfire in the long term.
• The changing tone of media coverage can have significant effects on public opinion.
• Publicizing opinion poll findings that are more favorable to reform of an institution further encourages support for reform.

A Condensed Chronological History of the US Anti-Death Penalty Movement

This condensed history of the US ADPM is not intended to imply causal relationships between listed events, unless such relationships are stated explicitly. For example, if a sentence referring to a campaign by a state anti-death penalty organization is followed by a sentence about a referendum in that state, the campaign should not be assumed to have substantially influenced the referendum results. Causation is discussed more explicitly in the section on “Strategic Implications.” The current section of the report is not intended to present a comprehensive narrative; it condenses the history into events and processes that have strategic implications for modern social movements. There are slight deviations from chronological order for clarity.

Early History of the ADPM

A small number of pre-modern rulers abolished the death penalty temporarily. Otherwise, the death penalty was a common practice for punishing criminals in most of the world for millennia.^[9]

The 1689 English Bill of Rights declared that “cruell and unusuall Punishments” ought not to be inflicted.^[10] Tuscany abolished the death penalty in 1786, as did Austria in 1787, except for in cases of revolt against the state.^[11] The US Bill of Rights (created 1789), prohibited the infliction of “cruel and unusual punishments” in the Eighth Amendment.^[12] Many of the Founding Fathers of the US and early US presidents expressed concerns about the use of the death penalty, seeking to avoid its use if possible. Dr. Rush, one of the signers of the Declaration of Independence, called for the death penalty’s total abolition.^[13] Partly as a result of Rush’s advocacy, petitions to abolish the death penalty were introduced in several states in the late 18th century, and several states restricted the death penalty to first degree murder, or murder and treason.^[14] Sociologist Herbert Haines claims that, “[a]fter the [American] Revolution, the debate over capital punishment became more visible. Abolitionism was almost indistinguishable from the prison reform movement at this stage. Thus, some of the vocal critics of executions were associated with such groups as the Philadelphia Society for Alleviating the Miseries of Public Prisons.”^[15]

In the early to mid-1800s, a religious revival contributed to advocacy against the death penalty in the US. Citizens petitioned state governments to abolish it.^[16] In 1814, Ohio became the seventh state to limit capital punishment to those convicted of murder and treason only; the previous six states had done so between 1794 and 1812, a period during which other northern states actually increased the number of capital crimes. However, between the 1820s and the 1850s, several states reduced the number of capital crimes and none increased it; by the time of the Civil War, no northern states had capital punishment for crimes other than murder and treason.^[17] Additionally, by 1849, 15 states restricted executions to prison settings, away from public view.^[18] This period saw the use of public reports, petitions, speeches, magazines, and various anti-death penalty legislative propositions at the state level. Local advocacy groups were formed, such as the New York State Society for the Abolition of Capital Punishment, and a committee of 30 women in Pennsylvania, whose petition gained nearly 12,000 signatures.^[19] It seems that most anti-death penalty advocacy came from educated elites in this period,^[20] though in one instance in the late 1840s, 80% of people in a capital case jury pool were dismissed due to their opposition to the death penalty.^[21] Several prominent opponents of slavery, including William Lloyd Garrison, Wendell Phillips, Frederick Douglass, and Horace Greeley, also opposed the death penalty.^[22]

In 1846, Michigan banned the death penalty; abolition has been maintained there to the time of writing, despite numerous polls in the late-20th century finding majority support for its reinstatement.^[23] Rhode Island (1852) and Wisconsin (1853), also banned the death penalty.^[24] Though claiming that “debate in Michigan was no different from that anywhere else,” legal historian Stuart Banner notes that these three states “were relatively egalitarian states in which the conservative Protestant denominations were not very large, and states with populations small enough to permit focused abolitionist groups to have some influence.”^[25] Maine also required the governor to pass a separate order to confirm a death sentence, which, according to sociologist Herbert Haines, “had the effect of abolishing executions de facto.”^[26] Haines attributes these successes to several factors, including “a general climate of reform in the handling of people on society’s margins.”^[27] In addition to these reforms in northern states, all southern states abolished the death penalty for some crimes when they were committed by whites.^[28] However, Banner argues that, “[m]uch of the debate that took place in the North simply did not occur in the South because of the perceived need to discipline a captive workforce,” i.e. maintain control of slaves.^[29]

Banner summarizes this period as seeing “a consistent string of failures” for the ADPM. “Year after year, in state after state, they had been unable to convince legislatures to repeal the death penalty completely.” For example, in Massachusetts, House committees recommended abolition in 1835, 1836, and 1837, and joint committees of both legislative houses voted in favor of abolition in 1851 and 1854. Nevertheless, abolition was not signed into law there.^[30] In New Hampshire, nearly two-thirds of voters rejected a referendum on abolition in 1844.^[31] Banner attributes these failures to the lack of focus of anti-death penalty advocacy; advocates often also pushed for wider reform to improve criminals’ wellbeing and for seemingly unrelated issues.^[32] However, Bohm argues that, “[b]etween 1800 and 1850, American death penalty abolitionists helped change public sentiment about public executions, especially among many northern-state social elites.”^[33]

The Mexican War (1846-8) and the American Civil War (1861-5) seem to have damaged the ADPM, or at least halted some of its work temporarily.^[34] Legal scholar Jeffrey L. Kirchmeier summarizes that, “[a]fter the Civil War, the hanging of the conspirators who plotted the murder of President Abraham Lincoln and the widespread use of extra-judicial lynchings by vigilantes made it difficult for anti-death penalty activists to argue that the death penalty was not necessary.”^[35] Echoing Banner’s criticism of the ADPM in the first half of the 19th century, Haines argues that the simultaneous focus of the reformers on multiple controversial causes, including capital punishment, prison reform, and antislavery advocacy, may explain why “external events siphoned off much of the momentum and resources that had fueled their efforts against hanging.”^[36]

1872-1936: Sporadic, temporary legislative success

The Wilkerson v. Utah (1878) and In Re Kemmler (1890) Supreme Court rulings found death by firing squad and electrocution to not violate the Eighth Amendment.^[37] In each case, the convict himself made an appeal against the specific method of execution, rather than against capital punishment as an institution.^[38]

In 1887, Maine permanently abolished the death penalty, having previously abolished then reinstated it. Both Iowa (abolished 1872, reinstated 1878) and Colorado (abolished 1897, reinstated 1901) temporarily abolished the death penalty. The short-term effects of well-publicized crimes and executions may have encouraged these legislative changes.^[39] In 1889, a Minnesota law required that executions take place before sunrise and prohibited newspapers from reporting details of the executions^[40]; the United Kingdom had already stopped carrying our executions in public by this point.^[41] Opposition to capital punishment in Minnesota had reflected objections to the execution of a “woman or girl,” moral objections to state-sanctioned killing, views on the ineffectiveness of capital punishment as a deterrent, and practical arguments about the quality of jurors.^[42] Minnesota had temporarily introduced a de facto moratorium on executions from 1868-85.^[43] The primary motivation for the 1889 law seems to have been to reduce the perceived corrupting and degrading influences on society of public executions.^[44] Explicit abolition legislation was passed in the House of Representatives in Minnesota in 1893, but this was rejected by a Senate committee. Several subsequent bills failed.^[45]

From the late 19th century until the mid-20th century, many states replaced hanging with the electric chair or gas chamber as their principal methods of execution,^[46] apparently due to concerns about the suffering of the executed criminals.^[47]

Haines characterizes anti-death penalty activism at the turn of the century as “based primarily at the state and local level”; several local groups were formed, such as The Anti-Death Penalty League in Massachusetts in 1897.^[48] Opposition came “not so much from religious leaders, as it had in the nineteenth century, but from judges, prosecutors, and the police.”^[49]

As Kirchmeier summarizes, in the early 20th century, a period known as the Progressive Era, “social reformers were concerned about government corruption and focused on areas such as poverty, housing, social injustice, corruption, and crime. The main battleground for reforms were fought at the state level.”^[50] In 1911, legislation finally successfully abolished the death penalty in Minnesota.^[51] It has never been reinstated, although there were bills to restore the death penalty there each year for 14 years.^[52]

Eight other states abolished the death penalty entirely in the late 19th and early 20th centuries but subsequently reversed the change.^[53] Many other states came close to abolition.^[54] Several long-term factors probably help explain why some states abolished the death penalty during this period while others did not, including the size of the non-white populations^[55] and a longer-term lack of support for abolition in Kansas, Minnesota, and North Dakota.^[56] 

The newspaper accounts cited by sociologists John F. Galliher, Gregory Ray, and Brent Cook (1992) show several frequent features of the abolition efforts at this time. State governors seem to have taken an active, independent role in abolishing the death penalty in several states, including Kansas, Washington, Oregon, Arizona, and Colorado. In two states, the governor was the president of a local anti-death penalty organization. Only in Tennessee does there seem to have been active opposition by the governor. In Colorado and Minnesota, the newspapers themselves seem to have been advocates of abolition or provided unfavorable coverage of executions. Prison officials advocated abolition in Washington and Oregon, seemingly before governors or legislators took action, though some officials opposed abolition in Tennessee.^[57] In Oregon and Arizona, abolition was introduced through referendums with very narrow margins, with votes that were split 100,552-100,395 and 18,936-18,784, respectively.^[58] A newspaper headline from Tennessee claimed that the legislature had passed the abolition bill there only after “vigorous debate.” However, South Dakota passed a bill by 63 votes to 24 and North Dakota’s bill abolishing the death penalty for murder passed the House of Representatives unanimously. Arguments used by the ADPM at this time included the “barbarism” of capital punishment and its ineffectiveness as a deterrent.^[59]

Factors encouraging the reinstatement of the death penalty in some states after the Progressive Era were the economic downturn that followed the prosperity of the early 20th century, the occurrence of notable crimes or an overall increase in the crime rate, the occurrence of lynchings in response to these crimes, panic about the threat of revolution, and the claims in four states of individual murderers that they would not have committed their crimes if the death penalty had existed.^[60] By comparison, officials in Minnesota responded harshly to lynchings, which may have helped to maintain abolition there.^[61] Reinstatement occurred through a referendum in Arizona, with a much wider majority than the referendum that had led to abolition. Elsewhere, reinstatement was supported by legislators, newspapers, and in Oregon, the state Bar Association.^[62] Some people in Colorado, Arizona, and Tennessee seem to have been indifferent to abolition when it was first proposed, and the legislation seems to have been viewed as an experiment; when abolition seemed to cause adverse effects (that is, increased lynching or crime), reversal came within a few years.^[63]

The total number of executions in the US declined from 161 in 1912 and 133 in 1913 down to 99 in 1914 and 65 in 1919, which was the lowest ever number of executions per capita on record to date. This decline was temporary, however; the total rose back to “the 140s” by 1921 and peaked at 199 in 1935.^[64]

In 1925, the American League to Abolish Capital Punishment (ALACP) was founded. Its executive committee comprised three prison wardens, a psychiatrist, and three academics. The ALACP distributed articles and pamphlets, and its leaders gave speeches. The ALACP provided support for legislative campaigns for abolition in “at least 11 states, providing testimony and mailing tens of thousands of pieces of literature a year.” It also established a committee to research deterrence and racial discrimination in capital sentencing. The ADPM’s legislative efforts failed between the 1920s and 1940s, however.^[65] Activism similar to the ALACP’s was developing in the UK at this time.^[66] At the same time as the ALACP’s activism, celebrities like Henry Ford publicized their opposition to the death penalty,^[67] as did some prison officials.^[68]

In 1936, the last US public execution took place — 68 years after the last in the United Kingdom.^[69]

1936-1966: Declining execution rates

From the late 1930s, a sharp decline in rates of executions began. This continued until the late 1960s, when no executions were taking place.^[70] Though the fall in executions began initially in northern states such as Illinois and New Jersey,^[71] the change was sharpest in the South, where the death penalty had been used most frequently.^[72]

Figure 1: Number of executions per year, 1931-2019.^[73]

Trends that began in the 19th century or early 20th century that may have encouraged the beginnings of this decline include:

• The development from the late 19th century onwards of scientific and social scientific theories that crime was caused by heredity and environmental factors, rather than chosen freely by the criminal.^[74]
• Increased awareness of executions that were controversial due to the youth or possible innocence of the executed, or due to concerns about racial motivations.^[75]
• The increase in empirical evidence that challenged the claim that the death penalty was a more effective deterrent than its alternatives.^[76]
• The decline in the early- to mid-twentieth century of income inequality,^[77] which is correlated with death penalty support.^[78]

More substantial factors that seem likely to have contributed to the decline in executions include:

• The growing international trend towards abolition.^[79]
• Declines in the use of mandatory death sentences and the number of capital offenses^[80] as well as increasing restrictions on the use of the death penalty at the state level.^[81]
• The growing number of newspapers and religious organizations that were publicly criticizing the death penalty,^[82] as well as advocacy from the ALACP and others.^[83] Due partly to these factors, the attitudes of juries (and hence the public) may have been changing, with juries becoming less willing to impose death sentences.^[84] Another trend that suggests that there was increasing concern about the death penalty in the first half of the 20th century is the increasing time delays between the imposition of death sentences and the execution of the convict.^[85] From the mid-1950s, Gallup poll results show decreasing public support for capital punishment.^[86] Execution rates in France also seem to have declined as public support declined there.^[87]
• The “criminal procedure revolution” implemented by Chief Justice Warren’s Supreme Court, from 1961 onwards, sparked by the Mapp v. Ohio ruling. Though not focused specifically on the death penalty, these procedural changes presented death row inmates with the opportunity to litigate and postpone their executions.^[88] Banner notes that, by the 1960s, “the annual number of death sentences regularly exceeded the number of executions by a hundred or more… Clearly events after sentencing were more important than sentencing itself in causing the execution rate to decline.”^[89] Commutation of sentences seems to have already declined by the 1960s, so Banner attributes the continued drop in executions after this point to the much increased number of appeals to higher courts from condemned criminals.^[90] Legal scholars Carol S. Steiker and Jordan M. Steiker argue, however, that in the long term, these procedural changes may have encouraged a public perception and narrative that criminal procedure was over-regulated, increasing resistance to more substantial reforms to ensure better protections for criminals.^[91]
• The increased support and mobilization for movements that advocated some form of expansion of the moral circle in the 1950s and 1960s, such as those addressing civil rights and poverty.^[92] Herbert Haines speculates that the death penalty continued to decline in the post-war period because, “as practiced, many people found it to be glaringly inconsistent with the ascendant ideas of the times,” which included wider mass social movement participation and momentum for civil rights.^[93] Some advocates explicitly connected civil rights and death penalty issues.^[94]
• Haines summarizes that, “Philip Mackey speculates that the lingering shock of the Holocaust may have been partly responsible” for continued decline.^[95]
• According to Banner, “[t]he murder rate had dropped slightly, but not enough to make this big a difference” to the execution rate.^[96]
• From the late 1960s, litigators were systematically challenging the use of the death penalty.^[97]

Internationally, interest in abolition of the death penalty seems to have grown in the wake of the Second World War, partly in relation to an increased interest in enforcing human rights more broadly.^[98] Eleanor Roosevelt may have sought to remove references to the death penalty in the Universal Declaration of Human Rights, which was adopted in by the UN in 1948. Roosevelt noted in the drafting committee that there was a “movement underway in some states to wipe out the death penalty completely.”^[99]

In 1948, Caryl Chessman was sentenced to death for kidnapping with bodily harm. In the following years, he launched several appeals, acting as his own attorney, and wrote several books. His case brought international appeals for mercy from well-known figures such as Alduous Huxley.^[100] Haines notes that when Chessman was put to death, “angry mobs attacked US embassies in several countries.”^[101] The sentencing to death of Julius and Ethel Rosenberg, who spied for the USSR, in 1950, also provoked international protests.^[102] Barbara Graham claimed to be innocent but was executed in 1955; a book and Hollywood film were made about the case.^[103]

In the 1950s and 1960s, there seems to have been an increased focus on reform of the criminal system among the educated elite in both Europe and the US, including on restriction or abolition of the death penalty in some European countries.^[104] In the same two decades, US religious organizations representing both mainline and evangelical Protestantism put out official statements criticizing capital punishment.^[105] Intellectuals including Albert Camus and Arthur Koestler added to this criticism, as did politicians, including the governor of Ohio.^[106]

From 1950, the National Association for the Advancement of Colored People Legal Defense Fund (hereafter LDF) defended African Americans in several capital punishment cases. The LDF was a growing, well-resourced group^[107] that had contributed to favorable decisions in landmark Supreme Court rulings on African American civil rights, such as Brown v. Board of Education (1954).^[108]

From the 1950s, conservative governors and law enforcement officials in the South began to frame civil rights activism as “criminal” and challenging “law and order,” calling for the arrest of activists who were portrayed as “street mobs” and “lawbreakers.”^[109]

In 1953, the Royal Commission on Capital Punishment noted that the death penalty was used for few crimes in the UK and that, “the real issue is now whether capital punishment should be retained or abolished.” Haines believes that this encouraged abolition efforts in both the UK (which abolished the death penalty in 1969) and the US.^[110] Reform efforts and proposals for a moratorium in the UK also seem to have encouraged Canada^[111] and New Zealand’s^[112] ADPMs.

New state-level abolitionist organizations were formed in the late 1950s, some of which were tied to the ALACP.^[113]

In 1957, Hawaii banned the death penalty; it was the first state to do so since 1916.^[114] Alaska (1957), West Virginia (1965), and Iowa (1965) also subsequently banned the death penalty.^[115] In 1963, Michigan, which had abolished capital punishment for all crimes except treason through legislation in 1846, amended its constitution to prevent subsequent legislation from reintroducing capital punishment and to formally abolish capital punishment for treason.^[116] Though they subsequently reintroduced it, Delaware (banned 1958, reinstated 1961),^[117] Oregon (banned 1964, reinstated 1978),^[118] and New York (banned 1969, reinstated de jure but not de facto in 1995)^[119] also banned the death penalty in this period, in Oregon’s case through a referendum with 60% of the vote.^[120] Kirchmeier summarizes that public opinion in Oregon had been influenced by “a governor who was outspoken against the death penalty, a large political and public campaign (including ads by celebrities) against the death penalty, and public attention on a sympathetic condemned female inmate.”^[121] Vermont (1965) and New Mexico (1969) also introduced partial bans.^[122] Many other states considered legislation at this time.^[123]

In 1958, two public opinion polls in France found only 39% and 33% support for capital punishment, compared to 50% and 58% opposition. However, after two convicts undergoing life imprisonment murdered a warder and a nurse in their prison, a poll in 1972 found 53% support compared to 39% opposition. President George Pompidou had earlier reprieved six prisoners but did not reprieve these two men, who were executed that year.^[124]

In 1962, the American Law Institute (ALI) created its Model Penal Code, which contained recommendations for rationalizing capital punishment administration at the state level; the recommendations contrasted with contemporary state practice but did not advocate abolition.^[125]

In 1964, the book The Death Penalty in America by Hugo Adam Bedau, a committed anti-death penalty advocate, was published.^[126] In 1965, the American Civil Liberties Union (ACLU) issued a statement against the death penalty.^[127] That same year, Attorney General Ramsey Clark wrote a letter to Congress saying that the Department of Justice favored the abolition of the death penalty^[128]; he appears to have opposed the death penalty for both moral and practical reasons.^[129]

In 1965, Vermont and New York limited the death penalty to fewer crimes.^[130]

1966-72: Litigation and temporary legal success through Furman v. Georgia

In 1961, two law review articles suggested that litigators might be able to show the death penalty to be inconsistent with contemporary standards of decency,^[131] which would conflict with the Eighth Amendment, as interpreted by Chief Justice Earl Warren in the 1958 Supreme Court Trop v. Dulles ruling.^[132] In a dissenting opinion on the 1963 Rudolph v. Alabama case, three Supreme Court Justices suggested that the Court could be willing to hear arguments against the death penalty in future cases.^[133] Justice Goldberg had previously circulated a memorandum against capital punishment to the rest of the Supreme Court; on the request of Justice Warren, he did not publish it. However, in an interview, Goldberg’s clerk said that he “sent copies of the dissenting opinion to every lawyer in America who [he] knew.”^[134]

Presumably encouraged by these signals of the death penalty’s legal vulnerability, the LDF began a litigation campaign in 1966 to force a moratorium on capital punishment.^[135] Although initially intending to focus on African Americans convicted of rape, their involvement subsequently grew to encompass all those given a death sentence, regardless of race. Legal scholar Eric L. Muller explains this shift as having been a result of the campaigning and legal logic of the LDF combined with a sense of ethical duty to protect all convicts equally, without discrimination by race.^[136] Kirchmeier summarizes the LDF’s three tactics as, “(1) challenging cases in the Supreme Court; (2) developing and using social science evidence in the courts; and (3) attempting to block all executions while the litigation was in progress. The LDF’s goal of achieving a judicial moratorium involved a nationwide effort to enlist and work with lawyers in various states.”^[137] The LDF argued that “death is different” and that, consequently, juries needed to be given precise standards on when to pass sentence.^[138] In 1967, the ACLU joined the LDF in its litigation campaign.^[139] A few leading death penalty abolitionists did provide information to the LDF and ACLU,^[140] but both of these groups were predominantly civil rights groups that diverted resources from their other campaigns.^[141]

Nineteen sixty-six was the only year in which Gallup polls found that a higher percentage (47%) of the US public were opposed to the death penalty for murder than supported it (42%). In 1967, support rose back up to 54% but then sunk back down to 51% and 49% in 1969 and 1971, respectively.^[142] The temporary spike in support in 1967 may have been caused by, “extensive publicity surrounding the convictions of Albert DeSalvo (a.k.a. ‘the Boston Strangler’) and Richard Speck (who had murdered eight student nurses in Chicago) just before polling began.”^[143] Crime rates were also rising,^[144] which seems likely to have encouraged public support for the death penalty.^[145] Crime was also an important political issue; Richard Nixon used a “law and order” campaign in the 1968 election.^[146] Nevertheless, Gallup polls showed lower support for capital punishment in 1956-72 than any polls since 1972 have done.^[147]

A committee for the US Senate seems to have considered federal abolition legislation, though the bill never progressed beyond the committee stage.^[148]

From 1968 to 1977, no executions were carried out.^[149] State politicians and attorneys general were increasingly speaking out against the death penalty, including the governor of Arkansas commuting the sentences of all 15 individuals on death row in the state.^[150] In 1968, Attorney General Ramsey Clark asked Congress to abolish the federal death penalty.^[151] Haines summarizes that, “[b]y 1971, nine states had abolished the death penalty, four more had no one on death row, and anti-death penalty bills had reached the floor of state legislatures in California and Massachusetts, as well as the U.S. House of Representatives.”^[152]

In 1968, the Supreme Court rulings of United States v. Jackson and Witherspoon v. Illinois regulated capital trials; the former ensured that judges rather than juries retained the right to impose death sentences, and the latter limited the state’s ability to exclude conscientious objectors to the death penalty from juries.^[153] In 1970, the Fourth Circuit court ruled in Ralph v. Warden that the death penalty for rape violated the Eighth Amendment if lives were not endangered.^[154] However, in 1971, the Supreme Court ruled in McGautha v. California that the lack of “definitive standards” for the use of the death penalty did not violate the Constitution.^[155]

There were 13 votes on whether to reintroduce capital punishment held in the UK’s Parliament between 1969 (the year of abolition) and 1994, but all were defeated. Shortly before abolition there, a 1969 poll found that 85% of respondents were in favor of retaining the death penalty. Legislators in Germany had also proposed the reinstatement of the death penalty in the 1950s and 1960s but had failed, despite majority public support.^[156]

By the end of 1970, the number of convicts on death row in the US had risen to over 600, up from 435 in 1967, due at least in part to the LDF’s litigation to prevent their execution.^[157]

On February 17, 1972, the California Supreme Court ruled in The People of the State of California v. Robert Page Anderson that the death penalty violated Section 6 of the California Constitution, which stated that “cruel or unusual punishments” should not be inflicted. The justices considered whether the punishment was proportionate or excessive (i.e. “unusual”) and whether capital punishment was cruel by “contemporary standards” or not. There was also some consideration of whether vengeance was a suitable justification for punishment and whether capital punishment was an effective deterrent.^[158] National Gallup polls conducted in October 29 to November 2, 1971 and March 3 to March 5, 1972 found that 49% and 50%, respectively, of the US supported the death penalty for a person convicted of murder.^[159] This suggests that the Anderson decision either slightly increased public national support for capital punishment or had no effect.^[160]

Though Congress had passed two death penalty statutes in 1971,^[161] the House Judiciary Committee considered proposals for a two-year moratorium on federal executions in 1972, as well as proposals for abolition.^[162] The chairman explicitly highlighted that, “[t]he importance of the measures under consideration [lay] in the fact that the U.S. Supreme Court” was considering the constitutionality of the death penalty.^[163] In the absence of information about the subsequent fate of these bills,^[164] it seems likely that they were dropped at the committee stage.

On June 29, 1972, the US Supreme Court ruled in Furman v. Georgia (hereafter, Furman) that the carrying out of the death penalty for two convicts in Georgia constituted “cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” However, the judgement was made by a slim five-to-four majority, and all of the justices submitted separate opinions, having been unable to agree on a rationale for the decision.^[165] Two justices concluded that the death penalty was always “cruel and unusual,” but three concluded that the death penalty was only cruel and unusual as practiced at the time, with arbitrary sentencing.^[166] In previous years, the LDF and other lawyers challenging the death penalty had focused on the arbitrariness of death sentencing,^[167] so these litigation efforts seem likely to have been influential in the decision.^[168] The decision may also have been influenced by trends in judicial activism, the standardization of criminal procedure, the Court’s efforts to minimize the effects of racism, and changes in public opinion.^[169] The effect of the ruling was to nullify most capital punishment laws that existed at the time in the country.^[170] Before,^[171] during,^[172] and shortly after^[173] the Furman case, various involved actors and external commentators predicted the imminent abolition of capital punishment.

1972-86: Backlash, legal reversal through Gregg v. Georgia, and the ADPM’s initial shift towards public-facing advocacy

There is anecdotal evidence of outrage at the Furman decision among politicians and officials.^[174] Legal scholar Corinna Barrett Lain notes that, “[w]ithin a day of the decision, legislators in five states had announced their intent to enact new death penalty legislation and seventeen congressmen had joined in sponsoring a constitutional amendment to reinstate the death penalty.”^[175] In 1972 and 1973, The New York Times’ coverage of the death penalty was unusually frequent (around 120 and 90 articles respectively compared to around 40 and 25 in the two previous years) and unusually supportive of the death penalty (around 5 and 35 more supportive than hostile articles compared to roughly even coverage in the previous two years).^[176] These changes do not seem to have occurred to the same extent in magazine coverage.^[177]

On November 7, 1972, California reintroduced the death penalty, overturning the People v. Anderson decision from earlier that year. This was achieved with 67.5% support through the Proposition 17 ballot initiative.^[178] The Furman ruling seems to have led to some complacency among activists, funders, and politicians who otherwise might have been more determined in their efforts to defeat the California ballot initiative.^[179] 

Gallup polls conducted on March 3-5, 1972 and November 10-13, 1972 (shortly before and after the Furman ruling) show an increase from 50% to 57% support for the death penalty for a person convicted of murder.^[180] From this point public support for the death penalty continued to rise until 1994, when it peaked at 80%.^[181] 

The influence of rising crime rates on this trend is unclear. Mismatches in the chronology of changes in these two variables suggest that the increasing crime rate was not the only cause of changing public opinion.^[182] The small rises in self-reported fear of crime in this period suggest that increased crime rates are unlikely to have caused an increase in the public’s support for punitive treatment of convicts.^[183] A paper by Timothy R. Johnson and Andrew D. Martin compares public opinion data from the General Social Survey before and after three key capital punishment cases; there is a significant difference in aggregate public opinion after the Furman ruling but not after the other two rulings.^[184] Another paper models the determinants of support for the death penalty; though it controls for seven other factors, all four models find that the dummy variable for the period between the Furman ruling and the 1976 Gregg v. Georgia ruling (which clarified that the death penalty could comply with the Constitution^[185]) is significant, suggesting that Furman increased support for the death penalty. However, this paper also found that the murder rate and income inequality (which also began to rise at around this time^[186]) were significantly associated with public support for the death penalty and with the number of executions.^[187] 

At least one scholar has concluded that increasing violent crime rates were the most important factor in driving increases in support for capital punishment,^[188] and there is evidence of increasingly punitive attitudes towards criminals more generally at this time.^[189] It also seems plausible that the increase in pro-death penalty legislation in the period after Furman (see below) contributed to a social norm of high support for the death penalty.

Figure 2: Public opinion on the death penalty, as measured by Gallup polls, 1937-2018,^[190] with lines to mark on the dates of the Furman v. Georgia (1972) and Gregg v. Georgia (1976) rulings.

In December, 1972, Florida signed new legislation restoring the death penalty there.^[191] Ninety-seven percent of the National Association of Attorneys General voted in favor of asking Congress and the state legislatures to introduce new death penalty legislation.^[192] By 1976, 35 states and the federal government had redrafted laws to enable the use of capital punishment in a manner that complied with the Furman ruling.^[193] New Mexico, having abolished capital punishment in 1969, reinstated it in 1973.^[194] Oregon and Michigan, both of which had banned capital punishment (in Michigan’s case, 127 years previously) sought to maintain their authority to use the death penalty, though their bills failed.^[195] After 121 years of near abolition, Rhode Island’s legislature passed a capital punishment law in 1973 for prisoners who committed murder.^[196] Nevertheless, the legislative backlash seems to have occurred mostly in states that had used capital punishment frequently before Furman.^[197] One strategy to remove arbitrariness and comply with Furman was to make capital punishment mandatory for some crimes. This practice was very rare until Furman, only having been in use in Massachusetts for combined rape and murder and in Rhode Island and New York for murder while in prison.^[198] Sixteen states enacted mandatory death penalty laws after Furman.^[199]

Figure 3: Death sentences (blue) and executions (red) per year, 1973-2016.^[200]

Resistance to Furman was especially strong in the South, including among politicians and law enforcement officers.^[201] Opponents of Furman may have learned from the experience of the Brown v. Board of Education (1954) desegregation ruling that resistance to implementation, including via litigation and redrafted legislation, could prevent a legal ruling from having practical effect, at least temporarily.^[202]

Scholars and pundits describe the 1960s and 1970s as the period when the Republican Party used a “Southern Strategy” to win votes from southern white voters by indirectly appealing to racism.^[203] Criminal justice issues were an important part of this indirect discrimination, given racial disparities in crime and punishment,^[204] and given that “law-and-order” politics were posed as an alternative to illegal civil rights direct action, as in 1968 Republican presidential candidate Richard Nixon’s television advert campaign that promised to defend “decent citizens” from street crime and civil rights protests.^[205] Recent survey evidence suggests that racial prejudice affects attitudes towards capital punishment,^[206] so it seems plausible that the messaging and mobilization of the Southern Strategy encouraged support for the death penalty. This may have been especially so in the South, where resistance to Furman was the strongest.^[207] 

By the early 1990s, there was a common, yet minority, perception that racial prejudice motivated the law-and-order agenda of politicians; a Gallup poll found that over half of surveyed African Americans and one-third of surveyed whites believed this.^[208] The Supreme Court’s recent changes to criminal procedures^[209] may also have made the ruling more vulnerable to backlash from those who sought harsh policies for criminals.^[210] By comparison, rising crime rates in the UK in the 1950s do not seem to have been mobilized for a pro-death penalty or tough-on-crime political position,^[211] and political polarization on capital punishment may have decreased there at that time.^[212]

In the face of the backlash among legislators and the public, the LDF sought better empirical research to encourage continued judicial restrictions on capital punishment.^[213] After discussion with the LDF, the ACLU agreed to take responsibility for the legislative efforts of the ADPM, but until 1978, the directors of the ACLU’s Capital Punishment Project (CPP) were volunteers. At the state level, ACLU affiliates were involved in legislative campaigns in California, Kansas, New Jersey, and Vermont, using tactics including letter-writing and telephone campaigns, community meetings, and lobbying. However, one of the CPP directors wrote in a letter to ACLU leadership that, “[b]ecause the death penalty project is not as current as ‘Privacy’ or as dramatic as ‘Rights of Children,’ the smaller overworked affiliates are forced to make decisions and many of our project’s activities have lost-out.” They added that many members felt “that this is one project that can slide until the issue is before the Supreme Court again.”^[214]

The North Dakota legislature had already abolished the death penalty in 1915 for all crimes except treason and murder committed by an inmate already serving a life sentence. These last remaining capital crimes were removed in 1973.^[215]

In 1975, the Washington state legislature abolished the death penalty, though new mandatory death sentencing laws were reinstated in the same year through Initiative 316,^[216] which had 69% public approval.^[217] The new law was found unconstitutional by the Washington Supreme Court, though the legislature introduced a law to comply with constitutional requirements in 1981.^[218]

In 1976, after a period of systematically commuting all death sentences, the Canadian Parliament abolished death sentences. In 1987, a bill to move towards restoring capital punishment was rejected despite majority public support for the practice.^[219]

In 1976, the US Supreme Court considered five cases, collectively abbreviated as Gregg v. Georgia (hereafter, Gregg), where the defendants sought a ruling that the death penalty was always “cruel and unusual.” On July 2 of that year, the court upheld the death penalty in these cases by seven-to-two, defining “cruel” punishment as punishment that is “so totally without penological justification that it results in the gratuitous infliction of suffering.”^[220] The judgement noted that the concerns of arbitrary imposition expressed previously in Furman could be addressed through “carefully drafted statute,” which would mean that the death penalty could then be applied in a constitutionally acceptable manner. The passage of state legislation in response to People v. Anderson (California’s ruling against the death penalty) and Furman (the federal Supreme Court's ruling against the death penalty) seems to have been important in the decision.^[221] On the accusation that the death penalty was an ineffective deterrent, the Supreme Court concluded that, “there is no convincing empirical evidence either supporting or refuting this view.”^[222] Two Supreme Court judgements issued on the same day as the Gregg ruling clarified that capital punishment could be constitutional but that mandatory capital punishment could not.^[223]

Following these judgements, Gallup polls found a temporary decrease in support for the death penalty for murder, falling from 66% support in April 1976 to 62% support in March 1978.^[224] However, a paper by Timothy R. Johnson and Andrew D. Martin found no significant difference in public support before and after the Gregg decision, as measured through the General Social Survey.^[225] 

In 1976 and 1977, The New York Times’ coverage of the death penalty was unusually frequent (around 180 and 190 articles compared to around 50 in the previous year) and very slightly more critical of the death penalty than in surrounding years.^[226] These changes in the New York Times’ coverage were not matched closely by magazine coverage of the death penalty, however.^[227]

From 1976-82, five of the six executed convicts were white, and four of the six chose not to appeal their death sentences. These two unusual features of the first few executions after Gregg may have allayed concerns about the return of capital punishment.^[228] Nevertheless, Gregg seems to have sparked resistance from the ADPM. The National Coalition Against the Death Penalty (NCADP, later renamed the National Coalition to Abolish the Death Penalty) was formed in 1976. The NCADP brought credibility to the ADPM from its professional and religious affiliate organizations, pressured governors to veto death penalty bills, and encouraged grassroots mobilization via the clergy but had limited funding and influence until the mid-1980s.^[229] The group Southern Coalition on Jails and Prisons organized protests against the death penalty on Christmas Eve 1976, and on the weekend after the first post-Gregg execution (of Gary Gilmore in 1977) outside prisons, statehouses, and governors’ mansions. During Easter 1977, the group gathered between 1,000 and 3,000 protestors at the Atlanta state capitol. The group had Christian origins, and the protests were vigils with prayers.^[230] 

Similar protests and vigils continued through the 1970s. Haines notes that until the mid-1980s, “abolitionists refused to let a convict be put to death without their being there to bear witness,” though they were “often outnumbered by boisterous pro-death penalty demonstrators on hand to celebrate the imminent demise of a convicted murderer.”^[231] Some activists also held direct action sit-ins against governmental targets and used publicity stunts such as dumping fake execution victims on a public building’s steps and performing street theater.^[232] Despite some internal disagreement, Amnesty International USA (AIUSA) also adopted an increased focus on the death penalty, holding a major news conference at the UN headquarters in New York in 1979 and having 100 local groups with death penalty coordinators by June 1980.^[233] Amnesty International had been formed in 1961; it had initially focused on securing the release of political prisoners through letter-writing and pressuring law enforcement agencies and governments but had already become active in the European ADPM.^[234] Haines characterizes public-facing “political abolitionism” in the late 1970s and early 1980s as “weak and ill formed”; the movement remained “lawyer-dominated.”^[235]

A working paper by undergraduate student Marnie Lowe “coded instances of published [anti-death penalty] movement speech in The New York Times and Los Angeles Times for the frames they feature… from 1965 to 2014.” By Lowe’s categorization, the second chronological era analyzed, 1976-85, saw an increase in the use of “moral” (as opposed to “instrumental”) arguments by legal advocates as the primary frame quoted in newspaper articles. The rise was to 75%, up from 41% in the 1965-75 era; use by activists and anti-death penalty movement sympathizers remained similar. In contrast, by 1993, legal advocates had ceased to use moral framings entirely. In Lowe’s categorization, focus on discrimination, arbitrariness, innocence, and errors are classified as “instrumental,” rather than “moral” framings.^[236]

From 1977 to 1999, most executions occurred in the South, which may have been due to the higher homicide rates and to differences in how states provided defense lawyers,^[237] as well as longer-term cultural and political factors.^[238]

In 1977, the Coker v. Georgia Supreme Court ruling found that imposing the death penalty for the rape of an adult woman was a “grossly disproportionate and excessive punishment.”^[239] From 1977 onwards, various other Supreme Court rulings restricted the types of cases for which capital punishment was eligible for use.^[240] For example, Godfrey v. Georgia (1980) prohibited death sentences based on vaguely defined aggravating circumstances,^[241] Ford v. Wainwright (1986) prohibited the use of capital punishment on the insane,^[242] and Thompson v. Oklahoma (1988) prohibited execution of those aged fifteen or younger.^[243]

Having voted against the death penalty in 1914 and 1964, the people of Oregon voted to reinstate it in November 1978 and in 1984 (after the 1978 law was declared unconstitutional) through referenda.^[244] In 1979, the Supreme Court of Rhode Island declared that the capital punishment law that had been introduced in the state after Furman constituted cruel and unusual punishment.^[245] No one was ever executed under the post-Furman law. Indeed, no one has been executed in the state since 1845, and in 1984, the legislature removed the death penalty from the state’s penal code.^[246]

From 1982 onwards, several studies began to show that capital punishment was more expensive than alternatives.^[247] Until the results of such studies became widely known, pro-death penalty advocates seem to have used cost arguments to their advantage.^[248] 

In 1983, the Supreme Court ceased consistently ruling in favor of criminals sentenced to death. From 1976-83, the Court had ruled in favor of 14 of the 15 appeals for death-sentenced criminals that had been fully argued in the Court. In 1983-4, however, the Court allowed a variety of loosenings of the restrictions on capital punishment, such as seeming to permit inconsistent application of the death penalty in Pulley v. Harris (1984).^[249] In 1983 and 1984, The New York Times’ coverage of the death penalty may have been unusually frequent relative to the years that directly preceded and followed.^[250]

In 1983, the Council of Europe (CoE) added Protocol No. 6 to the European Convention on Human Rights, which abolished the death penalty, except “in respect of acts committed in time of war or of imminent threat of war.”^[251]

In the same year, the first of many innocence projects — university groups led by attorneys and professors of law or journalism that made use of student volunteers to expose errors in death sentencing — was set up in Princeton, New Jersey. By 2006 the group, Centurion Ministries, had helped to exonerate 14 convicts, predominantly from life sentences or death sentences.^[252]

Massachusetts abolished capital punishment in 1984. Abolition was driven by a Massachusetts Supreme Judicial Court decision in spite of the Gregg decision and an amendment to the state’s constitution approved by voters two years before that noted, “[n]o provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death.”^[253] Previous political efforts had led to the passage in 1951 of a sentencing law that allowed juries to recommend that life imprisonment be imposed instead of the death penalty, but abolition legislation had failed on multiple occasions, despite anti-death penalty lobbying and the report of a state-appointed commission which had encouraged abolition. The state’s voters had also rejected abolition in a referendum in 1968.^[254] A pro-death penalty Republican governor failed to push death penalty bills through the state legislature in 1994 and 1995, so he attempted to introduce similar proposals through a ballot initiative. However, the specifics of the Massachusetts Constitution prevented the use of ballot initiatives to reinstate capital punishment.^[255] In 1998, state legislators rejected reinstatement legislation by a single vote^[256] despite a poll the previous year finding 74% public support for the death penalty for those who murdered a child.^[257] Anti-death penalty advocacy by the Pope and by Massachusetts Catholic bishops helped to encourage legislators to reject death penalty legislation again in 1999.^[258]

From the mid-1980s, the number of annual exonerations from death row seems to have begun to gradually increase, albeit with high variation between years: Between 1973 and 1985, there were between zero and four exonerations per year (mean 1.8), which increased to between one and thirteen in 1994-2006 (mean 5.3). By March 2007, the cumulative total of exonerations since 1973 was 123.^[259]

1986-97: Peak support for the death penalty, some setbacks, some successes, and the beginnings of the ADPM’s shift towards messages and asks with broader appeal

Kirchmeier summarizes that in 1986, “Chief Justice Rose Bird and two other California Supreme Court justices were voted off the bench following a political campaign that focused on their votes on reversing death sentences.” Similarly, “in a 1996 retention election, Tennessee Supreme Court Justice Penny J. White was voted off the bench after a number of groups campaigned against her because of one decision in which she voted for a new death sentencing hearing for a defendant.”^[260] These examples may be indicative of a wider trend of public support for the death penalty encouraging a more pro-death penalty attitude among elected judges. Looking at state Supreme Courts, political scientists Paul Brace and Brent D. Boyea (2008) found that public opinion has no direct effect on the likelihood that the Courts reverse a capital punishment ruling unless the justices are directly elected; if the justices are elected, the level of public support for the death penalty has nearly twice as much of an effect as the justices’ own political ideology.^[261]

In 1986, the Ford v. Wainwright Supreme Court ruling prevented the use of capital punishment on the “insane.”^[262] In the same year, the American Bar Association set up its Death Penalty Representation Project.^[263]

According to Lowe’s content analysis of The New York Times and Los Angeles Times articles, 1986-1992 saw a downward shift in the use of “categorically wrong” arguments as the primary frame of the ADPM’s quoted or written statements to 27% from 43%. During the same period, there was a temporary increase in “wrong at the edges” framing (up to 13% from 3%) and other moral frames (3%). The years 1986-92 saw the use of moral framings drop substantially by activists (down to 28% from 42%) and legal advocates (down to 60% from 73%); the overall use of moral framings was sustained by an increase in use by movement “sympathizers,” Lowe’s category for individuals who “lack official affiliation with movement groups but affirmatively oppose the death penalty.”^[264]

In 1986, Charles Fulwood, the new director of Amnesty International USA’s (AIUSA) death penalty program, conducted a survey to explore aspects of the death penalty that were most unpopular in Florida. Fulwood’s aim was to exploit these concerns to gradually reduce the popularity of the death penalty through targeted messaging.^[265] The survey found that fewer than half of respondents supported the execution of convicts under 18, people guilty of unpremeditated murders of family members or friends, people with histories of mental illness, or the intellectually disabled. Fulwood stated in a 1992 interview that he decided to “focus on doubt, rather than feeling like you had to convince somebody to be against the death penalty all the time — although we always said, you know, that we are fundamentally opposed to this as a matter of policy, because this is a human rights violation.”^[266] Within a few years, there were some legislative victories restricting the application of the death penalty to exclude members of some of these groups. Haines wrote in 1996:

Thirteen states and the federal system have set 18 as the age threshold for death sentencing. Despite widespread public support for the exemption of juvenile offenders, however, no state has taken action to raise its existing statutory age limit. ‘MR bills’ have fared somewhat better. In 1991, a year in which activists devoted a great deal of effort to achieving statutory provisions prohibiting the execution of mentally retarded convicts, such bills failed to pass in 15 of the 16 states where they were introduced. But eight states had enacted them by June 1993. The list grew to ten by mid-1995.^[267]

Fulwood also reduced AIUSA’s emphasis on responding to announcements of execution dates with letters requesting clemency; this freed up resources to focus on proactive outreach attacking the broader institution of capital punishment, such as via the media.^[268] Shortly afterwards, The Death Penalty Information Center was set up by a public relations firm with “links” to the ADPM to seek better press coverage.^[269] This occurred alongside political campaigning by the NCADP in 1992^[270] and other anti-death penalty advocates’ efforts to dissuade attorneys from seeking death sentences.^[271] Haines argues that these developments represented a shift in the ADPM from reactive tactics to more proactive tactics.^[272]

In the 1987 McCleskey v. Kemp ruling, the Supreme Court accepted that there was “a discrepancy that appears to correlate with race” but noted that unequal outcomes across races “are an inevitable part of our criminal justice system.”^[273] McCleskey’s case was rejected five-to-four and Justice Lewis Powell later expressed regret at having voted against it.^[274] The decreased willingness of the Supreme Court to proactively make decisions with substantial policy implications may have contributed to this decision.^[275] Legal scholar John D. Bessler argues that the rejections in Gregg and McCleskey “forced death penalty opponents to open new fronts,” noting that, “death penalty foes have begun appealing directly to the American public.”^[276] Other scholars have also seen the McCleskey case as a watershed moment, symbolizing a decreased interest of the Court in regulating the death penalty.^[277] Indeed, legal scholars responded critically to the decision, though this may reflect their general anti-death penalty sentiment rather than the specifics of the case.^[278]

In 1987 in Kansas, new emphasis by anti-death penalty advocates on the costs of implementing the death penalty may have helped to persuade the Kansas Senate to reject a death penalty reinstatement bill by 22 votes to 18.^[279] The cost argument may have been influential in Alaska and Minnesota in the following years as well.^[280]

Although the additional procedural requirements after Furman and Gregg had made the concern of executed innocents seem less plausible, studies from 1987 began to emphasize this risk again.^[281] Several convicts were discovered to be innocent after coming close to execution in 1989-93.^[282]

In 1988, Congress increased the number of offenses for which capital punishment could be used.^[283] In the presidential election campaign of that year, Democratic nominee Michael Dukakis opposed the death penalty and was criticized by the Republican campaign of George H. W. Bush for his liberal views on the treatment of convicts, including his support for a prison furlough system while governor of Massachusetts.^[284]

The Supreme Court rulings in Murray v. Giarratano (1989), Teague v. Lane (1989), and Coleman v. Thompson (1991) reduced the ability of those on death row to use legal defenses such as habeas corpus.^[285]

A 1990 publication listed 34 national organizations and 147 state or local groups that were involved in the ADPM, either as their sole focus or as one of several causes. An additional 20 national religious organizations were listed as having official policies against the death penalty.^[286] By 1991, the NCADP had $221,487 in revenue, having grown over the previous few years, and AIUSA continued to increase its budget for death penalty work.^[287] Nevertheless, the movement seems to have been underfunded at both the national and state levels.^[288]

Justice Brennan and Justice Marshall — the only two Supreme Court Justices to consistently oppose every judgement upholding the death sentence — retired in July 1990 and June 1991, respectively.^[289]

During the 1992 presidential election campaign, Democratic candidate Bill Clinton “talked tough” on crime issues and emphasized that he had enforced the death penalty as governor of Arkansas. Clinton’s attitude contrasted with that of the previous Democratic nominee, Michael Dukakis.^[290]

After the murder of a member of the congressional staff of a US senator in Washington D.C., the senator called for a referendum to reinstate capital punishment in D.C. The referendum was opposed by religious leaders and a variety of activists. The referendum was rejected by 68% of voters. In D.C., 80 of the 118 executed had been black and the majority of the voters who rejected the referendum were African Americans. Similar methods of organizing — “block parties, motorcades, and public forums” — were used again to successfully prevent death penalty legislation in 1997.^[291]

In 1993, the Roman Catholic sister Helen Prejean published the book Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. The book attracted a great deal of attention and enhanced the credibility of the ADPM. Sister Prejean showed empathy for the victims of crime, making it hard for conservatives to dismiss her arguments.^[292]

Lowe’s research based on The New York Times and Los Angeles Times articles shows a decline in the use of moral arguments as the primary frame in the ADPM’s public-facing statements during the 1993 to 2003 era to 37% from around 43% during the first three eras (1965 to 1992). Use of moral framings by legal advocates quoted in the sample of articles fell from 60% to 0%.^[293]

In 1994, Justice Harry Blackmun — who had dissented from the majority decision in Furman to invalidate capital punishment and advocated mandatory death penalty use in Gregg v. Georgia — shifted towards opposition to the death penalty. In his dissent to the Callins v. Collins case, he renounced the court’s efforts “to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.”^[294] Unlike Justices Brennan and Marshall, his opposition to capital punishment was based upon the unfairness of sentencing.^[295] After his retirement, Justice Lewis F. Powell also changed his mind about his former decisions to uphold the death penalty.^[296] Since they were Nixon appointees and had previously upheld the death penalty, their views could not be easily dismissed by conservatives.^[297] Subsequently, Supreme Court Justices Ruth Bader Ginsburg, Sandra Day O’Connor, and John Paul Stevens have expressed concerns with the death penalty,^[298] as have many judges in lower courts.^[299]

Nineteen ninety-four saw the peak of support for the use of the death penalty for murder; support subsequently fell from this peak of 80% down to 56% in 2018.^[300] In the late 1990s the US economy flourished^[301] and crime levels fell (see Figure 4), which may have encouraged more tolerance for convicts.^[302] Indeed, support for punitive treatment of convicts seems to have declined more widely.^[303] GDP per capita had been increasing in the US for decades, so this seems unlikely to have been a major factor in the change in public opinion.^[304] Violent crime rates seem to have begun to decline at a nearly identical time point to the decline in support for capital punishment; the overall rate of change is different, though visual inspection suggests that even some of the temporary upticks in the two trends may be related to each other:

Figure 4: Violent crime rates and support for the death penalty.^[305]

Other factors that could plausibly have played a role in the decline of support for capital punishment include:

• The publication of Helen Prejean’s Dead Man Walking.^[306] However, this had occurred in 1993 and the General Social Survey found an increase in support in 1994 when compared to 1993.^[307]
• The newfound opposition to the death penalty of Harry Blackmun and other Supreme Court justices,^[308] though it seems unlikely that judicial opinions would be highly influential on public opinion.^[309]
• The increasing and more critical newspaper coverage of the death penalty in 1996-2000,^[310] including from a prolific group of journalists in Austin, Texas in the year 2000.^[311] These changes in coverage could have been related to the increasing emphasis on innocence in capital punishment discussion.^[312]
• A number of other highly salient events related to crime and the death penalty.^[313]

In 1994, Kansas reinstated the death penalty.^[314] In the same year, the New York Republican candidate for governor won the election with a pledge to reinstate the death penalty.^[315] Also in 1994, politicians in Arkansas, Delaware, Illinois, Montana, Nevada, New Jersey, Oregon, Pennsylvania, South Dakota, and Tennessee expanded death penalty statutes in their respective states.^[316] Between 1995 and 2006, over 20 state legislatures added new factors that made criminals eligible for the death penalty.^[317]

In 1994, Congress increased the number of offenses for which capital punishment could be used.^[318] In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, which made the use of habeas corpus actions to protect convicts on death row more difficult.^[319] Congress also reduced funding for organizations that provided legal advocacy for convicts, including convicts contesting their death sentences.^[320] The 1994 and 1996 acts were signed into law by President Clinton, a Democrat, and advertised as successes in his 1996 reelection campaign.^[321]

By the mid-1990s, the Council of Europe had made the commitment to abolishing the death penalty except in times of war a condition for new countries to join.^[322]

A paper by political scientists Frank E. Dardis, Frank R. Baumgartner, Amber E. Boydstun, Suzanna De Boef, and Fuyuan Shen quantified articles in The New York Times by “innocence,” “constitutionality,” “morality,” or “other” frames; it found that from 1996, there was a rapid increase in the number of NYT articles on capital punishment (rising to nearly 250 in 2000, higher than the previous peak in 1977), the hostility of the articles towards capital punishment, and the proportion of articles that used an innocence frame.^[323] Three of the same authors — Baumgartner, De Boef, and Boydstun — found in their book that there was also an increase in hostility, coverage, and usage of the innocence frame in magazine articles.^[324] Their analysis of other newspapers suggests that there was a rise in innocence framings from around 1998.^[325] They argue that the surge in media attention to the death penalty was due to “a larger social cascade surrounding the new innocence frame.”^[326]

1997-present: Growth of the moratorium movement and sporadic legislative success

Since the 1960s, United Nations institutions such as the Human Rights Committee had recommended that nations with the death penalty consider implementing moratoriums.  Suggested resolutions by the UN General Assembly in 1994 and 1999 called again for an international moratorium on capital punishment, though a resolution was not passed until 2007. This non-binding resolution asked UN member states to increasingly restrict the death penalty while ensuring that international standards were met.^[327] 

In 1997, the American Bar Association (ABA) passed a resolution calling for a national moratorium on executions until state legislation complied with the ABA’s guidelines.^[328] This brought media attention and non-partisan credibility to the anti-death penalty cause.^[329] Two years subsequently, the ABA claimed that their resolution “had a profound impact… in spawning grassroots efforts questioning the fairness of the death penalty as implemented in particular jurisdictions.”^[330] In October, 2000, the ABA ran a conference on the death penalty.^[331] In September 2001, the ABA set up its Death Penalty Moratorium Implementation Project, which encouraged state governments and other bar associations to press for moratoriums on capital punishment.^[332] In 2017, the ABA noted that, “[a]t least ninety-nine local jurisdictions; many dozens of organizations; and thirty-six national, state, local, and specialty bar associations have passed resolutions supporting moratoriums in their jurisdictions.”^[333]

In 1998, the National Conference on Wrongful Convictions and the Death Penalty was held in Chicago. It was organized by Lawrence Marshall, a law professor at the Northwestern University. According to a contemporary news article, the conference was attended “by more than 1,000 lawyers, law students, professors and death penalty opponents” and included “28 of the 73 men and 2 women who [had] been released from death rows across the country since 1972.”^[334] Marshall subsequently claimed that the conference made wrongful convictions into a key talking point in the movement.^[335]

In 1998, four states introduced bills to abolish the death penalty. Twelve states introduced bills in 1999.^[336] The ABA notes that by July 2001, “bills specifically calling for a moratorium [were] introduced in 17 states, and legislation to address death penalty-related concerns raised in the ABA moratorium resolution [were] introduced in 37 of the 38 states that authorized capital punishment.”^[337] In 2001, Nevada and Maryland nearly passed bills for moratoriums.^[338] Additionally, local organizations and communities passed resolutions calling for moratoriums.^[339]

The death of gay student Matthew Shepard prompted some members of the LGBTQ community to voice support for the death penalty.^[340] Nevertheless, other members of the LGBTQ community have opposed the death penalty for a number of reasons, including concerns about homophobic discrimination in sentencing,^[341] and at least 11 groups publicly announced their opposition to the death penalty during Shepard’s murder prosecution.^[342] LGBTQ groups have subsequently engaged in some anti-death penalty advocacy. For example, the group Queer to the Left used a letter-writing campaign to encourage the commutation of the sentences of all death row inmates in Illinois in 2002 and a press conference and newspaper ad to mobilize the LGBTQ community on the issue.^[343]

In 1999, Nebraska’s legislature voted for a moratorium on the death penalty, but the governor, Mike Johanns, vetoed the bill.^[344] Though it did not override the veto on moratorium legislation, the legislature unanimously overrode Johanns’ veto of funding for a study on the fairness of the death penalty in Nebraska.^[345]

The Illinois House of Representatives passed a nonbinding moratorium bill in 1999.^[346] In 2000, the Republican Governor, George Ryan, imposed a statewide moratorium on executions and subsequently granted clemency to all prisoners on Illinois’ death row.^[347] Kirchmeier believes that this was “not based on a moral opposition to the death penalty but rather on concerns about systemic problems.”^[348] These concerns had been encouraged by publicity and advocacy around recent exonerations and executions of convicts whose guilt was in question, especially by the Chicago Tribune newspaper and the law professor Lawrence Marshall.^[349] Ryan justified his decision by stating that, “[o]ur capital system is haunted by the demon of error—error in determining guilt, and error in determining who among the guilty deserves to die.”^[350] In a poll, 66% of Illinois residents supported his moratorium decision.^[351] 

Two months after the moratorium, Ryan used an executive order to create a Commission on Capital Punishment to “study and review the administration of the capital punishment process in Illinois.” A study the commission conducted, published in its 2002 report, found that the death penalty was being applied arbitrarily and discriminatorily. The report recommended various procedural changes to reduce these problems.^[352] 

Ryan’s successor, Rod Blagojevich, was a Democrat who had campaigned in favor of the death penalty. However, Blagojevich avoided ending the moratorium.^[353] In 2010, the Democratic candidate Pat Quinn was elected governor after declaring he supported the death penalty if applied “carefully and fairly.” Nevertheless, Quinn signed abolition legislation in 2011,^[354] following increased lobbying and advocacy from several Illinois anti-death penalty groups and Democratic legislators, the final report of a state-sponsored committee, and a law review article by a senior law lecturer at Northwestern University School of Law.^[355] Chicago anti-death penalty advocate Rob Warden argues that this outcome depended on the gubernatorial election results that year.^[356]

In 2000, New Hampshire’s Congress voted to abolish the death penalty, but the Democratic governor vetoed the bill.^[357] Some anti-death penalty legislators in New Hampshire seem to have emphasized moral arguments, but at least some legislators were persuaded to support abolition because of concerns about procedural errors and the risk of executing innocents.^[358] A 2008 poll in the state indicated 57% support for the death penalty in cases of police killing.^[359] Bills were passed by the legislature but vetoed by two different Republican governors in 2009 and 2018. In 2019, the New Hampshire Senate and House of Representatives each secured by a margin of a single vote the two-thirds majorities needed to override the governor’s veto of another abolition bill.^[360]

In Arizona in 2000, the state’s Attorney General created the Capital Case Commission to study the death penalty in Arizona;^[361] its proposed reforms died in committee the following year.^[362] Following a botched execution in 2014, Arizona’s Department of Corrections announced a moratorium on executions.^[363] A federal judge also demanded a moratorium; no executions have been carried out since then.^[364]

In August 2000, The Quixote Center claimed that there were over one thousand grassroots organizations advocating a moratorium on the use of the death penalty.^[365] However, a 2009 study located only 105 groups; the methods used should have identified larger non-profits but will have omitted some smaller, local groups.^[366] Haines had previously characterized state level anti-death penalty organizations as often existing “primarily on paper”^[367]; this feature of the ADPM may help to explain the discrepancy between the study and The Quixote Center’s claim.

During the 2000 presidential election campaign, Republican candidate George H. W. Bush and Democratic candidate Al Gore may both have tried to downplay and avoid the capital punishment issue.^[368] Both Gore and Bush supported the death penalty, though a third-party candidate, Ralph Nader, opposed it.^[369] Bush won the election.^[370]

In 2000-2001, several states proposed legislation to reduce arbitrariness in capital punishment and reduce the number of cases where it could be used.^[371]

A survey conducted in 2001 (which emphasized that, in several instances, criminals sentenced to be executed had been released based on new evidence or DNA testing) found that 73.9% of respondents expressed support for suspending the death penalty “until its fairness is studied.”^[372]

In the Massachusetts legislature, reinstatement of the death penalty was rejected by one vote in 1997 and by 32 votes in 2001.^[373] Maine also rejected a bill to reinstate the death penalty in 2001.^[374] Referring to the Maine and Massachusetts votes, legal scholar James Liebman notes that, “[f]or the first legislative session in literally decades, only two legislative or ballot initiatives to reinstate capital punishment in a non-death penalty state came to a vote.”^[375]

Around the turn of the 21st century, several Republican politicians and death penalty supporters began to publicly advocate for a moratorium on capital punishment.^[376] Some groups representing families of murder victims did the same.^[377]

Several studies of the early 21st century have found evidence that a large number of individuals have been wrongfully given the death sentence.^[378] These findings may have influenced the views of institutional decision-makers. For example, Justice John Paul Stevens noted that the “recent development of reliable scientific evidentiary methods has made it possible to establish conclusively that a disturbing number of persons who had been sentenced to death were actually innocent.”^[379]

From 2002, several Supreme Court rulings substantially reduced the number and types of cases in which the death penalty could be applied^[380]:

• Atkins v. Virginia in 2002, prohibiting the use of capital punishment on people with intellectual disabilities, overruling the 1989 Penry v. Lynaugh decision.^[381]
• Ring v. Arizona in 2002, prohibiting sentencing judges from finding aggravating circumstances that would enable the imposition of the death penalty; this could only be done by a jury.^[382] This overruled the 1990 Walton v. Arizona decision.^[383]
• Roper v. Simmons in 2005, prohibiting the use of capital punishment on people under the age of eighteen, overruling the 1989 Stanford v. Kentucky decision.^[384]
• Kennedy v. Louisiana in 2008, prohibiting the use of capital punishment for the rape of a child or any other non-homicidal individual crime.^[385]

In some of these cases, the Supreme Court made reference to international opinion and treaties.^[386] In 2002, the Council of Europe added Protocol No. 13 to the ECHR, which sought to “take the final step in order to abolish the death penalty in all circumstances.”^[387] This removed the exception allowing the use of the death penalty in times of war.

In 2002, the governor of Maryland declared a moratorium on executions, though this was lifted by his successor.^[388]

Lowe’s research shows a continuation of the decline in the use of moral arguments as the primary framing of discussion in the ADPM’s public-facing statements. Moral arguments fell to 21% in the 2004 to 2014 era, down from 37% in the 1993-2003 era. The study also found that, “[t]he average number of distinct frames used per sampled article… rose between these eras by approximately 60%, meaning that movement participants more often opted to reference several [anti-death penalty] frames when describing the issue, rather than focusing on a single message.^[389] Newspapers were increasingly focusing on innocence at this time.^[390] 

In 2004, President Bush signed into law the Justice for All Act, which included the Innocence Protection Act; this allowed federal prisoners to apply for DNA testing and provided $25 million to help states pay for DNA testing for convicts.^[391]

In 2005, the United States Conference of Catholic Bishops issued a statement “calling for an end to the use of the death penalty.”^[392] This development may have helped abolition efforts in New Jersey and New Mexico; 44% of New Jersey’s population and about one-third of New Mexico’s population were Catholic.^[393] Although the Church had historically supported the use of the death penalty, over the course of the 20th century, some Catholic leaders had become increasingly critical of it.^[394]

New York’s reintroduced death penalty legislation was difficult to implement, and support for the death penalty there dropped from 47% in 1994 to 34% in 2005, according to polling by The New York Times.^[395] The People v. LaValle decision in the Court of Appeals of New York ruled that the state’s death penalty statute violated New York’s constitution.^[396] This led to de facto abolition of the death penalty, which was confirmed by legislation in 2007 that changed the last remaining capital crime to imprisonment for life. There have been no executions in New York since 1963.^[397] This victory for the ADPM seems to have been less celebrated than the subsequent legislative abolition of capital punishment in New Jersey.^[398]

In January 2006, New Jersey’s acting governor signed into law a statute that created a death penalty study commission and imposed a moratorium on executions.^[399] This had been the explicit demand of the group New Jerseyans for a Death Penalty Moratorium (NJDPM, later New Jerseyans for Alternatives to the Death Penalty or NJADP).^[400] This followed several attempts since 2001 to pass similar legislation, which had been vetoed by the previous governor^[401]; increases in Democratic control of the legislature and the election of a new governor who supported a moratorium may have been important in facilitating subsequent success.^[402] New Jersey had unusually low support and usage of the death penalty for decades,^[403] although polls in 2002, 2005, and 2007 each found majority opposition to the abolition of the death penalty there.^[404]

The staff of NJDPM initially worked from their homes without requiring dues from NJDPM’s members, hosted hundreds of events, and lobbied legislators through visits, letters, emails, and attendance at functions and meetings. New Jersey’s ADPM engaged in a grassroots public education campaign to support legislative work and avoided confrontation and mass protest.^[405] In addition to these grassroots efforts, NJDPM secured support from lawyers and experienced lobbyists, and commissioned polls that identified a decline in support for the death penalty in New Jersey.^[406] A lawsuit was introduced to challenge the state’s death penalty procedures with the intention of encouraging a moratorium; this succeeded in causing a temporary suspension of executions from 2004 and forcing the New Jersey Department of Corrections to participate in a public hearing.^[407] The litigation and legislation strategies may have complemented each other by encouraging institutional inertia in revising death penalty regulations, which may have made abolition seem to be the best solution to the state’s death penalty concerns.^[408] 

NJDPM’s strategy of focusing on a moratorium risked a continuation of the status quo. The legislation that was passed only called for the moratorium to last for a maximum of 20 months; the subsequent fate of the death penalty in New Jersey was at least partly dependent on the findings of the state’s newly appointed Death Penalty Study Commission.^[409] Nevertheless, the Commission’s report was damning.^[410] After lobbying from both proponents and opponents of abolition and debate within the legislature that crossed party boundaries,^[411] the New Jersey state legislature abolished the death penalty in 2007.^[412]

Subsequently, New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), Delaware (2016), Washington (2018), and New Hampshire (2019) abolished the death penalty.^[413] Other states have come close to abolition through legislation, such as Colorado and Kansas.^[414] A poll taken in New Mexico before abolition legislation passed indicates that there was majority public support for replacement of the death penalty there, although the question wording may be misleading.^[415] The abolition decisions in New Mexico, Illinois, Connecticut, Maryland, and especially New Jersey seem likely to have been substantially influenced by cost arguments. Such arguments were consciously emphasized by the NJDPM in New Jersey and the report of the state-sponsored commission.^[416] New Jersey, New Mexico, Illinois, and Connecticut all had high budget deficits when they abolished the death penalty.^[417] However, there is not consensus among New Jersey activists that this was the most effective messaging frame used in the campaigns.^[418] There is less evidence that increased emphasis on cost arguments was encouraged by local advocates in New Mexico, Illinois, Connecticut, and Maryland,^[419] but there is some reason to believe that it was influential in encouraging abolition in those states.^[420]

The governor of Tennessee introduced an executive moratorium for 90 days in 2007 while the lethal injection protocol was examined. A study committee was also created; structural changes were recommended, but abolition was not.^[421]

In 2007, some members of the ALI sought a stronger stance against the death penalty. The ALI commissioned legal scholars Carol Steiker and Jordan Steiker to conduct a study on whether the death penalty was meeting the requirements of the Constitution. This study helped to encourage the ALI to withdraw the capital punishment section of its Model Penal Code in 2009,^[422] though it chose not to take a position for or against abolition.^[423] 

In 2007, the Committee of Ministers of the Council of Europe announced the creation of a “European Day against the Death Penalty” which is held annually on 10 October.^[424] In December 2007, the UN General Assembly passed a resolution that member states still using capital punishment should “establish a moratorium on executions with a view to abolishing the death penalty.”^[425] The US was one of 54 nation states that voted against this resolution.^[426]

The 2008 Baze v. Rees Supreme Court decision reaffirmed the constitutionality of capital punishment^[427] but emphasized that the best available execution methods should be used where possible.^[428] The case revolved around the use of lethal injections; following this ruling and related litigation, some states have slowed their use of executions and sought alternatives, while others have not changed their practices significantly.^[429]

In 2009, Arkansas created the Arkansas Legislative Task Force on Criminal Justice to determine if there was judicial discrimination in the handling of felonies. The Task Force identified insufficient information gathering in some areas. After a 2012 court ruling finding the state’s capital punishment law unconstitutional, a new law was introduced and upheld in the courts.^[430]

A 2010 campaign by the UK group Reprieve targeted a Danish company and a British company supplying drugs to the US for lethal injection; by November of the same year, the UK had banned the export of these drugs. Subsequently, after media and stockholder pressure encouraged by Reprieve, the Danish company halted sales of a drug used in lethal injections. When Hospira, a manufacturer of sodium thiopental, which is used in lethal injections, sought to move production to a plant in Italy, Reprieve alerted the media, which encouraged Italian officials to threaten sanctions on Hospira if it did not cease production.^[431] In 2011, the EU banned the export of eight drugs used in lethal injections. An Indian company also ceased selling these drugs to the US, apparently having been influenced by international pressure.^[432] 

Seemingly beginning in 2011, pressure on drug suppliers within the US succeeded in causing halts in supply and delays to executions.^[433] In 2011, the only US manufacturer of sodium thiopental announced that it would stop producing the drug.^[434] However, no state has ceased executions indefinitely due to lack of supply of the drug.^[435] Between 2007 and 2013, seven states introduced laws to protect the identity of lethal injection drug suppliers.^[436] Legal challenges have subsequently been made against the non-disclosure of drug sources and the non-disclosure of execution protocols.^[437]

The governors of Oregon (2011), Colorado (2013), and Pennsylvania (2015) introduced moratoriums in those states, which are still operational at the time of writing.^[438]

California voters have passed several pro-death penalty initiatives in the state since 1972.^[439] In a 2012 referendum, Californians voted against repeal of the death penalty with a 52% majority.^[440] In 2014, a federal judge ruled that California’s use of the death penalty violated the Eighth Amendment of the US Constitution,^[441] but the ruling was overturned the following year.^[442] In 2016, California voters again rejected an abolition referendum with a 53% majority^[443] and approved another referendum to speed up the implementation of the death penalty.^[444] Nevertheless, in 2019, Democratic Governor Gavin Newsom used an executive order to introduce a moratorium on the death penalty.^[445]

In 2014, the Democratic governor of Washington announced a moratorium on capital punishment in the state, citing concerns about “[e]qual justice under the law” and “flaws in the system.”^[446] In 2016, he was reelected by a slightly higher majority than in 2012 (54.2% compared to 51.4%).^[447] Citing arbitrariness in application, the state’s Supreme Court declared in a 2018 ruling that capital punishment as practiced in Washington contravened the state’s constitution but explicitly stated that a “carefully drafted statute” could comply with the constitution.^[448]

A 2014 botched execution in Oklahoma encouraged a moratorium to be introduced on capital punishment in the state.^[449] In 2015, the US Supreme Court rejected a claim by Oklahoma death row inmates that the state’s use of the lethal injection violated the Eighth Amendment.^[450] In 2016, 66% of voters supported a referendum that guaranteed the state’s power to use capital punishment.^[451] From March 2018, the moratorium seems to have effectively come to an end.^[452]

In 2015, the Republican-dominated Nebraska legislature voted to abolish the death penalty, overriding the veto of the Republican governor Pete Ricketts by 30 votes to 19.^[453] This was followed by a petition to reinstate the death penalty. Despite legal challenges,^[454] in November 2016, a referendum was held on the issue; 61% of voters favored retaining capital punishment, overriding the 2015 vote.^[455]

Abolition legislation was rejected in Delaware’s House of Representatives in 2015, but in the following year the Delaware Supreme Court ruled the existing laws for capital punishment to be unconstitutional.^[456]

The Extent of the Success of the US Anti-Death Penalty Movement

Changes to execution rates

Internationally, execution rates are not as high as they have been in the past. For example, Amnesty International notes that, “[a]t least 690 executions were known to have taken place globally in 2018… This figure represents the lowest number of executions that Amnesty International has recorded in the past decade.”^[457] Though they rose after Furman, both death sentences and executions have fallen since the late 1990s in the US.^[458] Once the number of death sentences imposed began to decline around the turn of the 21st century, the rate of decline was more rapid than the rate at which the death penalty was being abolished internationally, in proportion to the value in 2000.^[459]

Legislative and legal changes

The death penalty has been abolished in 21 US states as well as the District of Columbia and Puerto Rico.^[460] The number of nation states that have abolished the death penalty and maintained that abolition has risen to 105.^[461] For comparison, since the 1970s, around half of countries that have abolished capital punishment for all crimes have been European countries^[462]; South and Central America also have a long history of abolition, with several abolitions in the 19th century.^[463] The number of countries or US states that have abolished capital punishment is a somewhat misleading metric of success, given that some states have retained capital punishment laws but performed negligible numbers of executions.^[464] The increase in the number of countries that have formally abolished the death penalty has been accompanied by an increase in the number of states that are abolitionist de facto, and decreases in the enforcement of capital punishment.^[465]

Acceptance and inclusion

Various politicians have taken positions for and against the death penalty, from Clinton’s pro-death penalty actions^[466] to George Ryan’s imposition of a moratorium in Illinois.^[467] Despite this politicization and some political polarization over the issue,^[468] the ADPM’s organizations and goals do not seem to have been formally recognized by either party.

Changes to public opinion

Gallup polls found that the US public’s support for the death penalty for murder fell from 68% in 1953 (when regular polling began) to 42% in 1966. After this point, support rose to a peak of 80% in 1994 before falling back to 56% in 2018 (see figure 2 above).^[469] Results from similarly worded poll questions by the National Opinion Research Center’s General Social Survey (GSS) reveal a similar trend.^[470] Additional questions by Gallup have addressed capital punishment in the 21st century; some of these have shown an increase in opposition in this period.^[471] However, different question framings lead to differences in apparent levels of support for the death penalty.^[472]

An index created by Baumgartner, De Boef, and Boydstun (2008) combined the results of 292 surveys on the death penalty; this index shows much lower volatility in public opinion on the death penalty.^[473] If this index is understood to be a more reliable indicator of change than the Gallup poll results (or the results of any other individual poll), then any evidence of positive or negative effects on public opinion from analyses that do not use this index — including in the preceding “condensed chronological history” in this report — should be understood to be relatively weaker than it otherwise seems.

It is possible that long-term or indirect factors, most notably changing crime rates, could account for some of the change in public opinion.^[474] Increasing crime may have encouraged pro-death penalty attitudes from the late 1960s, though it is possible that the Furman ruling, combined with anti-death penalty political mobilization and tough-on-crime rhetoric, played a more important role.^[475] Public support for the death penalty appears to have declined from 1994, and in this instance it seems clearer that a change (in this case, a decline) in the crime rate was influential.^[476] The more one thinks that crime rates were the primary determinant of changes in public opinion on the death penalty, the less weight one should place upon the evidence from the ADPM that certain advocacy tactics (such as writing widely publicized books or securing radical, controversial judicial change through litigation) have been effective or counterproductive in changing public opinion; instead, one should infer that these tactics have little effect.

European support for the death penalty has remained high despite widespread abolition. Support seems to have declined notably in some countries, however.^[477]

Changes in the importance and salience of the issue

Legal scholar Jeffrey L. Kirchmeier noted in 2002 that, in the US, “[s]ince 1981, the number of news stories about the death penalty has almost doubled every five years”; Kirchmeier’s search identified 238,652 stories in 1996-2000.^[478] There appears to have been a general upward trend in The New York Times’ coverage of the death penalty (see Figure 5 below).^[479] Kirchmeier also notes that, “[p]opular culture has embraced the issue with such recent movies as Dead Man Walking, Last Dance, True Crime, and The Green Mile, and with television shows such as The West Wing and The Practice.”^[480] Particular frames of discussion about capital punishment have also varied in salience.^[481]

Provider availability

Campaigns by non-profit groups and activists from 2010 have successfully reduced the supply of lethal injection drugs available to US states carrying out executions, including via legislation in the UK and EU.^[482]

Organizational resources

In the 20th century, the US ADPM struggled to find funding, used resources intended for other causes, and relied on volunteers.^[483] Funding of the US ADPM seems to have increased in the 21st century, though some of the most well-known organizations still only have annual budgets of a few million dollars.^[484] There are at least 100 nonprofits involved in the ADPM.^[485]

Features of the US Anti-Death Penalty Movement

Intended beneficiaries of the movement

• Criminals are excluded from humanity’s moral circle in the sense that they are denied rights afforded to other humans such as the right to liberty and, in some countries, the right to life. Criminals are usually individuals who have previously been included within the moral circle but have been excluded from it as a result of their convictions.
• The number of direct intended beneficiaries of the ADPM is much smaller than the number of direct intended beneficiaries of other social movements.^[486]
• The stories of individual criminals may substantially affect public opinion, legislation, and social movement mobilization. Kirchmeier suggests that cases like those of Caryl Chessman and “sympathetic figures like Mumia Abu-Jamal” brings momentum to the ADPM, but that media focus on “mass-murderers like Theodore (‘Ted’) Bundy” has the opposite effect.^[487] This effect seems to have been influential at many timepoints^[488] and in many places.^[489]
• Some legal challenges have been brought at the instigation of convicts themselves.^[490] However, the Death Penalty Information Center notes that, “Alabama is the only state whose anti-death penalty organization (Project Hope to Abolish the Death Penalty) was founded by death row inmates.”^[491]

Institution^[492]

• At times, annual execution rates have fallen to zero or close to zero in some areas of the US^[493] despite high rates elsewhere.^[494] Only a tiny proportion of murderers are actually executed.^[495] Criminals are sentenced to death in only a minority of local counties, even within states that support the death penalty.^[496] The infrequent and sporadic use of capital punishment seems to be an important feature affecting comparability with other movements. For example, it may help to explain why outright abolition of the institution is frequently considered and has sometimes been implemented without substantial incremental reform beforehand.^[497]
• Capital punishment is now more expensive than alternative punishments in the US, although this was not widely known until the 1980s.^[498] The ability to commute death sentences to life imprisonment provides a ready alternative.^[499]
• There are large racial disparities in capital punishment. For example, in 2006, African Americans comprised 12% of the US population but 42% of those under a death sentence.^[500]
• Capital punishment is more entrenched in the South than elsewhere in the US, potentially due to historical cultural and political factors such as the South’s greater use of slavery in previous centuries, the subsequent use of lynching to maintain a racial hierarchy, stronger vigilante values, and stronger attachment to states’ rights.^[501]
• Research highlights a number of other features that appear to be associated with higher use of the death penalty in particular areas in the US, including stronger conservative and religious leanings,^[502] higher rates of homicide against white people relative to black people,^[503] and lower willingness to pay for law enforcement institutions.^[504]
• Internationally, cultural factors, structural factors, and other indirect, long-term factors influence the tractability of advocacy in different nations. Islam, or more specifically Sharia law, seems to increase attachment to capital punishment.^[505] Local acceptance and interaction with international human rights norms seems intuitively likely to affect tractability of anti-death penalty advocacy. However, in Asia, political structure may be a better predictor of the usage of capital punishment than cultural factors.^[506] Indeed, how democratic a country is seems to be an important factor internationally.^[507]
• Support for harsh punishments, including capital punishment, is an easy way for politicians to signal the strength of their opposition to crime, which almost everybody is opposed to.^[508]

Advocacy

• Although there has been some grassroots anti-death penalty activism,^[509] protests and direct action seem to have played little role in the movement; education, litigation, and lobbying seem to have been greater priorities.^[510] Though the group People Against Executions was temporarily active in the period after Gregg, Haines summarized (in 1996) that, “as infrequent as it has always been in the ADPM, civil disobedience virtually disappeared from the movement’s tactical repertoire after the mid-1980s.”^[511] Haines argued that the ADPM had “no ‘radical flank’ that employs disruptive or violent tactics to harass the criminal justice system.”^[512]
• Given that the death penalty has not been carried out by individual people since the decline of lynching, the ADPM has also lacked organizations or advocacy that focuses on individual behavioral change, which could plausibly be an important component of the “ecology” of successful social movements.^[513] 
• The US ADPM does not seem to be well-funded.^[514] Low funding presumably makes it especially challenging to achieve social change in the US. It may indicate a general lack of impetus that would make social movement success unlikely, even if the advocates used highly effective strategy, and may require advocates to take different routes to social change than those available to movements with a more natural, stronger social impetus. 
• Anecdotal evidence suggests that there is determination among anti-death penalty advocates, at least in the 21st century, to place only limited emphasis on moral arguments.^[515]
• Some (perhaps most) African American activists in the ADPM feel that not enough attention is given to racial issues in anti-death penalty advocacy.^[516]
• At times, the ADPM has used messaging that directly encourages antagonism towards the intended beneficiaries of the movement by framing life imprisonment without parole as an alternative punishment that is preferable because it is more punitive.^[517]
• The ADPM seems to have little demographic diversity,^[518] despite lower levels of support for the death penalty among people of color than among whites.^[519]
• Although anti-death penalty advocates have been criticized for being unsympathetic to the suffering of the families of murder victims,^[520] some victims’ family members have been active in the ADPM; Haines lists 11 such activists, one of who (Marietta Jaeger) set up the organization Murder Victims’ Families for Reconciliation.^[521]
• Some anti-death penalty advocates encourage stronger links with the civil rights, anti-abortion, and gun control movements, though other advocates do not prioritize the development of these links.^[522]
• Haines characterizes the anti-death penalty movement as having “remarkably little infighting,” perhaps “because of its relatively small size.” Nevertheless, Haines cites several areas of debate, such as whether to use incremental or absolute strategies.^[523] Sociologist Sandra Jones has found evidence from interviews with activists of disagreement within the ADPM on the effectiveness of vigils and of civil disobedience.^[524] Jones also finds evidence of disagreement over the extent to which the movement should prioritize lobbying and insider strategies or building up a grassroots movement.^[525]
• Technological change seems to have facilitated advocacy against the death penalty, such as through the development of DNA testing for guilt.^[526] The changes from hanging towards electrocution and gas chambers^[527] and then towards lethal injection^[528] have been motivated at least in part by concern for the suffering of the executed.
• Throughout the late 20th century, the Methodist, Lutheran, Episcopal, and Presbyterian churches and leading Reform Jewish organizations have supported the abolition of the death penalty, but the Southern Baptist Convention and several evangelical organizations have opposed abolition. The Catholic Church has become increasingly hostile towards the death penalty.^[529] Campaigners in New Jersey in 2007 found support for their advocacy among Christians.^[530] Nevertheless, in general, US religious organizations have not been highly proactive in challenging the death penalty.^[531]

Society

• A study that asked participants to rate 30 different entities by the “moral standing” that they deserved found that “villains” (murderers, terrorists, and child molesters) were deemed by participants to deserve less moral standing than “low-sentience animals” (chickens, fish, and bees), with mean scores of 1.77 and 2.64 respectively on a scale from 0 to 9. Indeed, they were deemed to deserve less moral standing than non-sentient “environmental targets” (3.53) or plants (2.52).^[532]
• Support for capital punishment may be especially difficult to change, since desires for revenge seem to be common across cultures.^[533]
• A study from 2002 found that there was significantly greater support for the death penalty among whites, men, and southerners but that age had no effect on levels of support.^[534] Summarizing findings from Gallup polls between 1936 and 1986, criminal justice scholar Robert M. Bohm writes that, “whites, wealthier people, males, Republicans, and Westerners tended to support the death penalty more than blacks, poorer people, females, Democrats, and Southerners.”^[535] Looking at General Social Survey data around several key Supreme Court rulings, another study found evidence that men, whites, and Republicans were more supportive of the death penalty. The evidence of higher support for the death penalty among Republicans and conservatives seems especially strong.^[536] In one paper there was also some evidence that Jewish people and people with lower levels of education were more supportive of the death penalty.^[537] Survey evidence suggests that racial prejudice is associated with support for capital punishment.^[538] Authoritarianism is also a predictor of support for the death penalty.^[539] An individual’s punitiveness, authoritarianism, fundamentalism, and their nation’s homicide rate were found to predict death penalty support in a study with participants from outside the US.^[540]
• Several long-term, indirect factors affect public opinion towards capital punishment, the number of executions, and whether or not a state abolishes the death penalty, including the murder rate, the percentage of the population that is nonwhite, and economic inequality.^[541] Involvement in wars may also affect views on the death penalty.^[542]
• Debates around the death penalty and criminal justice issues are sometimes seen as predominantly simple morality issues,^[543] though they sometimes involve technical issues such as cost.^[544] 
• One method of social movement mobilization is to create organizations or framings that tap into “latent constituencies”: groups with pre-existing beliefs and attitudes well-matched to those of the social movement.^[545] Given the racial disparities in capital punishment,^[546] ethnic minority groups may form latent constituencies for the ADPM; 28% of the respondents to the 2010 US census reported their race as being something other than white (including 13% black or African American).^[547]

Differing outcomes in the United States and Europe

Given the contrast between the current abolition of capital punishment in most of Europe and its retention in much of the US,^[548] it is tempting to identify differences in tactics of the advocates in these areas and to infer that these variations contributed substantially to the different legislative outcomes. However, there are a variety of long-term, indirect factors that may explain the majority of the difference.

Carol S. Steiker summarized ten of the most prevalent theories that explain the US’ capital punishment “exceptionalism”:

1. Homicide rates,
2. Public opinion,
3. Salience of crime as a political issue,
4. Populism,
5. Criminal justice populism,
6. Federalism,
7. Southern exceptionalism,
8. European exceptionalism,
9. American cultural exceptionalism, and
10. Historical contingency.^[549]

Of course, the relative importance of these factors has been debated. Hammel describes a debate between “culturalists” and “anti-exceptionalists.” The former “see the United States as having an exceptional culture that stresses individual personal responsibility, recognizes stark black-and-white moral absolutes, downplays ‘societal’ explanation for crime, and is relatively unconcerned about the racial and class bias that affect its justice system.” Anti-exceptionalists reject these arguments and focus on other issues, such as structural factors like federalism and direct public involvement in criminal justice policy.^[550]

Although accepting that cultural and structural differences help to explain the particular form and geography of capital punishment in the US, legal scholars Steiker and Steiker (2016) argue that they do not explain why the US has failed to abolish the death penalty. Instead, they argue that the US was, “on a similar trajectory to our Western European peers, with the same trends of restricting the crimes for which it could be imposed, moving executions behind prison walls, humanizing execution methods, and limiting its overall use… [T]he American death penalty came perilously close to extinction, to the point that it is contingent not only that the U.S. did not abolish, but that it did not abolish at a slightly earlier point than much of Europe. Claims of exceptionalism rooted in deep cultural or political differences suggest, wrongly, that American retention of the death penalty was somehow fated.”^[551]

This report does not attempt to thoroughly evaluate the relative importance of long-term, indirect factors, contingency, and the actions of the ADPM in causing the differing outcomes between the US and Europe. However, the less confident one is that the decisions of the US ADPM have led to its relative failure and the decisions of the European ADPM have led to its relative success, the less confident one should be that other social movements should aspire to emulate the features of the European ADPM and distance themselves from the features of the US ADPM.

Strategic Implications

Institutional Reform

The Causes of Judicial Change

• The opinions of the public and their elected representatives are important determinants of judicial decision-making, perhaps especially in death penalty cases.

Thomas R. Marshall (1989) found that, from 1934 to 1986, 142 Supreme Court opinions have directly mentioned “public opinion” and of these mentions, “criminal process — trials, prisoners, trial rights” cases made up 35%, “dissent — political, free speech, religious” made up 18%, and “[c]ivil rights, race” made up only 4%.^[552]

Public opinion seems to have been important in decision-making on the constitutionality of capital punishment, perhaps especially given the wording of the phrase “cruel and unusual” in the US Constitution (and “cruel or unusual” in the California Constitution). In 1972, the California Supreme Court noted that, “[w]ere the standards of another age the constitutional measure of ‘cruelty’ today, whipping, branding, pillorying, severing or nailing ears, and boring of the tongue, all of which were once practiced as forms of punishment in this country, might escape constitutional proscription, but none today would argue that they are not ‘cruel’ punishments.”^[553] Furman was passed at a low point in public support for the death penalty; this and falling execution rates suggested to people at the time that capital punishment was likely to dwindle out anyway.^[554] Steiker and Steiker summarize that, “[a]ccording to Evan Mandery’s behind-the-scenes account of the Furman decision, it was this apparent surge of public opinion against the death penalty that moved Stewart to agree with White to make up the Furman bare majority, and that would also move Stewart years later to express anger at how wrong the expert reports about the trajectory of public opinion had turned out to be.”^[555] 

In contrast, the Supreme Court explicitly justified the Gregg ruling by noting that, “it is now evident that a large proportion of American society continues to regard [the death penalty] as an appropriate and necessary criminal sanction.”^[556] Given that the ruling seemed to tolerate arbitrariness in executions (the principal concern in the Furman ruling), the increasing public support for the death penalty and backlash against Furman among legislators were probably important determinants of the reversal.^[557] Legislation at the state and national levels as well as public reactions seem to have been important factors influencing subsequent Supreme Court decisions on the death penalty, such as Roper v. Simmons (2005).^[558] Of the 142 Supreme Court mentions of public opinion identified by Thomas Marshall (1989), 8% specifically cited polls, 39% used indirect indicators such as statutes, and 70% used “normative, theoretical, or abstract (non-empirical) discussions.”^[559] Even among some of the dissenters in the Furman ruling, there was an acceptance that various indirect indicators of current public attitudes were important determining features. Disagreement seems to have revolved around how attitudes should be measured and acted upon; Justices Powell and Rehnquist emphasized the importance of deference to the decisions of Congress and state legislative bodies, while Chief Justice Warren Burger emphasized the importance of deference to the decisions of juries.^[560]

However, the Justices have, at times, explicitly rejected the importance of public opinion in their decision-making, such as Justice Brennan’s comment in Furman that the right to be free of cruel and unusual punishments “may not be submitted to vote; [it] depend[s] on the outcome of no elections.”^[561] Only 21% of the Court’s mentions of public opinion identified by Thomas Marshall (1989) explicitly argued that law and policy should reflect evolving public opinion, while 19% argued that public opinion is a threat to rights and should be restrained.^[562] Even where public opinion was used as a guide, the results of opinion polling were not necessarily directly translated into judicial outcomes: The California Supreme Court noted that, because capital punishment was “a process which is far removed from the experience of those responding,” public opinion polls were not “helpful in determining whether capital punishment would be acceptable to an informed public were it evenhandedly applied to a substantial proportion of the persons potentially subject to execution.”^[563] In Furman, Justice Thurgood Marshall argued that, “whether or not a punishment is cruel and unusual depends, not on whether its mere mention ‘shocks the conscience and sense of justice of the people,’ but on whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust and unacceptable… Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.”^[564]

A paper by political scientists Paul Brace and Brent D. Boyea (2008) found that the effect of public support for the death penalty on the likelihood that state supreme courts would reverse death penalty impositions from lower courts was statistically insignificant overall. However, in states that elected their Supreme Court justices, “going from least to most public support for the death penalty produces a 13.2% reduction in the likelihood of a reversal vote.” They show in multivariate regression analysis that, “[i]n states where supreme court judges face election, and where these judges must render capital punishment decisions, stronger public support for the death penalty produces significantly more conservative judges and… these conservative judges are more likely to uphold capital convictions.”^[565] Indeed, political campaigns that explicitly focused on death penalty issues have led to the removal of justices who have challenged the death penalty or the election of justices who have unambiguously supported its use.^[566]

• The changing composition and views of the Supreme Court could substantially influence legal outcomes, though change may be slow.

In 1970, the LDF appealed the Eighth Circuit’s ruling in the Maxwell v. Bishop case, expecting a narrow victory in the Supreme Court. However, as the case was pending, Justice Abraham Fortas unexpectedly resigned, and Chief Justice Earl Warren retired. Since one of the replacements, Harry Blackmun, had taken part in the Eighth Circuit ruling and was disqualified from voting again, the Supreme Court ruling reached a four-to-four deadlock.^[567] Haines adds in a footnote that, “in 1968 the justices had secretly voted six to three to strike down the Arkansas death penalty. But Justice Harlan changed his mind, and the arrival of Warren Burger changed the likely outcome to five to four to uphold.”^[568] This episode clearly shows that the outcome of key rulings hangs in the balance of the appointment decisions of presidents and confirmation by the Senate (two of Nixon’s nominees were rejected^[569]). If the issue at stake in these rulings is an important factor in the justices’ appointment, then the president’s views hold great importance. Otherwise, luck (in the sense of factors outside the control of most social change actors) seems likely to be a crucial factor.

The partially conflicting findings of McGautha v. California in 1971 (where the Supreme Court rejected the claim that discretion in the imposition of the death penalty violated the Constitution) and Furman in 1972 (where the Court majority agreed that the arbitrariness involved in contemporary application of the death penalty was unconstitutional^[570]) are not explicable in terms of changing Supreme Court composition. Hugo Black and John Harlan left the Court in September 1971, having voted in favor of the McGautha v. California ruling. Their replacements, Lewis Powell and William Rehnquist, both voted against Furman; that is, they voted in the same way Black and Harlan likely would have.^[571] However, the changed composition of the court may have contributed to the fragility of the Furman decision and the backlash it encouraged. Furman was decided by a narrow five-to-four majority, and the four opponents of the ruling were the four Justices appointed by President Nixon, who supported capital punishment.^[572] The change between Furman and Gregg is partially accounted for by changing composition, as the liberal Justice Douglas was replaced by Justice Stevens, who legal scholar Corinna Barrett Lain characterizes as, “a moderately conservative Ford appointee.” However, the majority in Gregg was seven-to-two, with Justices Stewart and White (who had supported both the pro-death penalty McGautha and anti-death penalty Furman rulings) switching back to voting to defend the constitutionality of the death penalty in Gregg.^[573]

Sentience Institute’s research on the prisoners’ rights and anti-abortion movements as well as the political science and legal scholarship on the Supreme Court has also found evidence of the importance of the Court’s composition in affecting whether or not it drives social change.^[574]

• Exceptional legal arguments by talented advocates may have some influence on major court cases.

Banner suggests that Anthony Amsterdam, who argued the LDF’s perspective in the Furman case, successfully persuaded Justices White and Stewart “to change their minds” in Furman, compared to their votes on the McGautha v. California case the previous year.^[575] Lain and Haines provide contemporary evidence that Amsterdam was seen as an impressive legal advocate.^[576] However, Lain argues that Amsterdam’s talents alone cannot explain the Supreme Court’s change of mind, since Amsterdam had failed to persuade them in the past.^[577] Changing public opinion also likely contributed to the justices’ change of mind.^[578] 

In 1975, Solicitor General Robert Bork was permitted to argue that the Supreme Court should overrule Furman, which seems likely to have been influential in the Gregg ruling, though perhaps more because of his position as Solicitor General than because of his personal talents.^[579]

• The Supreme Court may be less willing to proactively protect or enhance rights when it expects that it will not be able to enforce its rulings.

Steiker and Steiker argue that “the absence of workable remedies contributed to the failures to protect capital defendants… in the first century following the Reconstruction Amendments” and when the Court refused “to grant relief of any kind in response to post-Furman studies showing continuing race discrimination in the modern era of the death penalty.”^[580] In these two periods, when it seemed less likely that the Supreme Court would be able to enforce rulings that protected convicts sentenced to death, it refused to make such rulings.

• If radical legal change at the federal level fails, victories at the state level may still be tractable.

After Gregg and McCleskey, national abolition through the Supreme Court seemed less tractable.^[581] The ADPM seems to have subsequently shifted towards legislative strategies at the state level, which have achieved some more concrete and (so far, at least) lasting victories.^[582] Similarly, the US anti-abortion movement transitioned away from efforts to ban abortions outright at the federal level towards incremental legislation at the state-level, which seems to been successful at restricting the availability of abortions.^[583]

The Effects of Judicial Change

• Court rulings can encourage social change.

Despite the legislative backlash that it provoked (see below), Furman likely contributed to the low execution rates in the years following the decision despite rising levels of crime^[584]; there were only 6 executions in 1972-82, compared to 98 in 1999 alone (the post-Furman peak).^[585] Massachusetts abolished the death penalty by judicial interpretation of its state constitution,^[586] and subsequent rulings in New York and New Jersey led to de facto moratoriums on the death penalty which were then shored up through legislation.^[587]

Of course, litigation might fail to produce the desired results, and Supreme Court rulings can be hostile to a movement’s goals, as demonstrated by the Gregg (1976) and McCleskey (1987) rulings.^[588] Given this, the backlash to Furman,^[589] and the withering of the grassroots element of the ADPM,^[590] the litigation strategy pursued by the ADPM seems not to have been a cost-effective method of securing progress towards its goals.

• Highly salient judicial changes may provide momentum to opposition groups.

There is evidence that, after Furman, there was a backlash among some of the institutional actors that had direct influence over capital punishment in the US:

• Following the ruling, there was outrage among legislators and hostile news coverage.^[591]
• There was a dramatic spike in death sentences in the years directly following Furman. Considered by decade, the trend towards decreased numbers of executions appears to have temporarily reversed in the 1980s to 2000s, before execution rates began declining again in the 2010s.^[592] 
• In the fifteen years before Furman, Hawaii, Alaska, West Virginia, Iowa, Michigan, Delaware, Oregon, and New York had banned the death penalty.^[593] In the fifteen years after Furman, only North Dakota and Massachusetts banned the death penalty.^[594] By 1976, 35 states and the federal government had redrafted laws to enable the use of capital punishment in a manner that complied with the Furman ruling.^[595]
• After Furman, governors became more reluctant to commute death sentences.^[596]
• Legal scholar Stephen Smith notes that before Furman, prosecutors were responsible for proving guilt, while juries decided on whether to impose the death penalty. However, after Furman, the redrafted state laws “typically require prosecutors to put the death penalty in play by charging and proving legislatively specified factors that render defendants eligible for, and deserving of, death.”^[597]

Comparably, the Gregg ruling seems to have spurred mobilization in the ADPM.^[598] From other social movements, including the anti-abortion movement, there is additional evidence of legislative backlash against judicial rulings. The extent to which those rulings were responsible for any apparent backlash has sometimes been disputed.^[599]

However, some factors specific to the Furman ruling may have encouraged the backlash against that ruling. As Lain suggests, “capital punishment was a matter traditionally considered to be a state prerogative”^[600] and “the fractured nature of the Court’s decision” undermined its credibility.^[601] The ruling provided a symbol that could be used as part of the Republicans’ Southern Strategy^[602]; if legislative backlash to Supreme Court rulings is not inevitable, it may be more likely if the rulings play into existing political narratives.

Historian Stuart Banner challenges the evidence that Furman generated a backlash, noting that, “[i]n the history of the death penalty, periods of abolition have always been followed by periods of sharp diminution in the strength of the abolitionist movement.” Banner adds that the relative stability in the number of states that authorized capital punishment for the rest of the century “suggests that the swing back to the death penalty would have taken place eventually, with or without Furman.”^[603]

• A focus among the judiciary on supplementary arguments may increase the chances of backlash against major legal change.

One of many differences between the European ADPM and the US ADPM^[604] is that European elites seemed to oppose the death penalty primarily for moral reasons,^[605] whereas Furman only received majority support among the Supreme Court Justices because of procedural concerns.^[606] This difference may partly explain why there was a substantial backlash against Furman^[607] but insufficient backlash against European regulation to prevent continued progress towards full abolition in Europe.^[608]

• After controversial Supreme Court rulings, public opinion may move away from the preferences implied by those decisions.

After Furman, public support for capital punishment rose; this was likely caused, at least in part, by the ruling itself,^[609] which was hostile to capital punishment.^[610] However, this response does not seem to be typical for the majority of Supreme Court rulings,^[611] and it may be that the backlash in public opinion only occurred because Furman interacted with other relevant factors. For example, the Furman ruling may have served an important symbolic role that was encouraged by the Republican Party’s “Southern Strategy.”^[612] This strategy may have, in turn, encouraged support for capital punishment. Even if a backlash in public opinion occurs, it may only be temporary, and there is a comparable risk of (temporary) public opinion backlash for other forms of sudden radical change, such as through legislation.^[613]

• There is some evidence that procedural reforms may legitimate an institution by making it seem more humane than is the case in practice. However, the same reforms may cause substantial practical difficulties, which contribute to the decline of the institution.

In the aftermath of the Gregg decision, various Supreme Court rulings have regulated the administration of capital punishment in a manner that Steiker and Steiker describe as “complex, arcane, and minutely detailed” yet ineffective at reducing capital sentencing. The result is that “[v]irtually no one thinks that the constitutional regulation of capital punishment has been a success.”^[614] The Supreme Court’s involvement may have legitimated and encouraged the imposition of death sentences in the lower courts by assuaging anxiety and the sense of responsibility for the decision.^[615] Certainly, the number of death sentences increased after the Furman ruling,^[616] and Steiker and Steiker’s legitimation theory is one plausible explanation for this. However, the sharpest rise in death sentences seems to have occurred shortly after Furman (which was understood by many at the time to effectively constitute an abolition of the death penalty^[617]) rather than after procedural rulings such as Coker v. Georgia (1977) and Ford v. Wainwright (1986).^[618]

Comparably, successful litigation for improvement in prisoners’ conditions seems to have encouraged federal regulation of prisons as well as the creation of new corrections departments and prisons^[619]; it is possible that this has somewhat entrenched and legitimized the system of mass incarceration.

It is also possible that the Supreme Court’s rulings have legitimated the use of capital punishment in wider popular perception because, in Steiker and Steiker’s words, “the elaborateness of the Court’s death penalty jurisprudence fuels the public’s impression that any death sentences that are imposed and finally upheld are the product of a rigorous — indeed, too rigorous — system of constraints.”^[620]

Steiker and Steiker also suggest that the regulation of capital punishment has encouraged the specialized training of lawyers to defend those facing death sentences, thereby causing difficulties for the death penalty’s implementation,^[621] and encouraged the expectation of continued improvement of the institution.^[622] In their more recent book, they conclude that, “over time, constitutional regulation, again unintentionally, contributed to the marked destabilization and diminution of the American death penalty, sowing the seeds for a likely categorical constitutional abolition.”^[623] Though the chain of events that may have caused regulation to substantially challenge capital punishment is not clearly established by Steiker and Steiker, their hypothesis seems plausible: regulation may have “led to the creation of permanent institutional structures, including capital defender organizations, intricate and lengthy capital trials, and multiple tiers of judicial review,” which may in turn have made the passage of death sentences and their actual implementation through executions more difficult.^[624]

• Important judicial rulings, whether favorable or not, seem likely to increase issue salience, at least temporarily.

Several temporary spikes in The New York Times’ coverage of the death penalty (see figure 5 below) seem to be related to particularly important judicial rulings, such as Furman (1972), Gregg (1976), Coker v. Georgia (1977), and various rulings that loosened the restrictions on capital punishment in 1983-4.^[625] However, the spike in 1977 could be partly or wholly due to South Dakota’s abolition of the death penalty^[626] and the spike in 1990 is surprising, given that there were significant Supreme Court rulings in 1989 and 1991 but not 1990.^[627] By comparison, some important political developments at the state level, such as events in Washington in 1975,^[628] do not seem to have caused substantial spikes in coverage, although the spike in 1999 was presumably related to the events in Nebraska and Illinois in that year.^[629] However, no content analysis to check what proportion of news items mention these important events has been attempted.

Figure 5: Number of stories on capital punishment in The New York Times, 1960–2003.^[630]

The histories of other social movements provide further evidence that litigation can draw public attention to an issue.^[631]

The Causes of Legislative Change

• Legislative change is surprisingly tractable without public support, though public opinion has a significant effect.

Public opinion can influence legislation.^[632] Political scientists Christopher Z. Mooney and Mei-Hsien Lee suggest that politicians are incentivized to be especially sensitive to public opinion on any “morality issue” because such issues are interesting and easily understood, and that the incentives are especially strong when the balance of public support is closer to a 50-50 split. Their event history analysis finds that public support for the death penalty was a significant predictor of variation in whether a state abolished capital punishment in 1952-71 but not of whether a state reinstated capital punishment in 1972-82; public opinion was more closely split in the earlier period.^[633]

Stephen Smith (2008) argues that, in the US, state and national politicians have been incentivized to expand the use of capital punishment due to majority support for its use. Similarly, politicians are incentivized to redirect funding in a way that makes delivering the death penalty easier.^[634] Since most are elected, prosecutors^[635] and judges^[636] are subject to similar incentives. Public opinion can also encourage governors to permit death penalty legislation that they might otherwise prefer to veto.^[637] Smith’s article has been criticized as relying on “isolated anecdotal information” to support its claims,^[638] and a poll conducted in 1999 in New York found some evidence that voters will not always support politicians who express support for harsher punishments.^[639] Nevertheless, these incentives may still have had some effect in encouraging capital punishment.

Of course, the implementation of legislation by elected officials is only indirectly related to public opinion, so change can occur without public support.^[640] Educated elites may be exposed to different information sources than the general public is exposed to, such as broadsheet newspapers rather than tabloid newspapers, and this may encourage rifts between the opinions of the educated elite and the general public.^[641] If different polities engage differently with public opinion, then a similar divergence between elite and public opinion may be translated into substantially different legislation.^[642] 

Various long-term and indirect factors also affect death penalty legislation in US states, reducing the influence of public opinion.^[643] In 1936, only one state’s public support for the death penalty was below 50% (Wisconsin, with 49% support), and in 1990-2, no state had lower than 61% support. Nevertheless, 5 and 12 states, respectively, had no (or very limited) capital punishment laws at those two points in time.^[644] 

Outside of the US, many countries have abolished capital punishment in spite of majority public support for its use^[645] and variations in levels of public opinion do little to explain variation in capital punishment between Asian countries.^[646]

• It is probably easier to introduce and implement unpopular laws if voters in the state do not have ready access to ballot initiatives or referenda.

Ballot initiatives enable the public to vote directly on an issue if a sufficient number of signatures are obtained on a petition to put the issue to a vote; referenda are also public votes but can only be implemented in response to decisions taken by the legislature.^[647] Voters in 4 of the 12 US states that have abolished the death penalty since 1972 had easy access to ballot initiatives or referenda (see table 1 below).^[648] Given that only 26 out of 50 states allow for initiatives or veto referenda,^[649] and not all of these 26 states allow voters easy access to them,^[650] this does not present clear evidence that access to initiatives or referenda is an important factor.

Table 1: The access of voters to ballot initiatives and referenda in states that have abolished the death penalty since Furman v. Georgia (1972).

However, abolition in Massachusetts came via a court ruling, and the specifics of the state’s constitution prevented a ballot initiative being used to overturn this,^[663] while Washington’s recent abolition still seems vulnerable to reversal.^[664] Additionally, voters in Washington in 1975,^[665] California in 2012-16 (via three separate referenda),^[666] Oklahoma in 2016,^[667] and Nebraska in 2016^[668] have used referenda or initiatives to fend off challenges to death penalty from court rulings or legislation. By comparison, initiatives and referenda were widely used at the state level to resist gay rights, especially same-sex marriage, in the late 20th century.^[669]

Referenda in European countries tend to be at the instigation of the legislature rather than when demanded by the people, though there are exceptions in some countries, especially Switzerland.^[670] The lower access to direct democracy in Europe may help to explain the success of legislative abolition of the death penalty there.^[671]

Anthony McGann and Wayne Sandholtz (2012) argue that, “both single-member district plurality (first-past-the-post) elections and presidential systems have a winner-take-all dynamic that leads to more plebiscitarian decision making” than systems with proportional representation (PR), which requires the negotiation of coalitions.^[672] Their models, incorporating a number of control variables, tested for the effects of PR and presidential systems. Though they use probit regression, which is nonlinear, they generate simulations that suggest, “a PR parliamentary democracy with a median income had a more than 60% probability of abolishing the death penalty before 1960,” compared to 17% probability for a presidential democracy and 0% for a “winner-takes-all parliamentary democracy.” Between 1960 and 2005, variables for PR parliamentary democracy and signature of European Convention on Human Rights’ anti-death penalty Protocol No. 6 were significantly positively associated with “the hazard rate for abolition.” By comparison, variables for presidential democracy and winner-take-all parliamentary democracy had no significant association (though the association had positive sign) with the probability of abolition.^[673] Though not directly testing the importance of ballot initiatives and referenda, these findings likewise suggest that easy access to mechanisms that encourage legislators to take account of voters’ current political preferences decreases the chances that unpopular policies will be enacted and maintained. Other political commentators have likewise argued that Europe’s widespread abolition of the death penalty depended on resistance to “populist impulses.”^[674]

Legal scholar Andrew Hammel similarly argues that the relative centralization of European judicial and political institutions and their insulation against popular opinion and interference, especially on criminal justice policy, may help to explain the continued abolition of the death penalty there.^[675]

Of course, ballot initiatives or referenda may fail at various stages of the process. In 1992, a referendum to reinstate the death penalty was rejected in Washington D.C. by 68% of voters.^[676] Michigan rejected a referendum to reinstate the death penalty by 100,000 votes in 1931, and efforts to reestablish capital punishment through referenda in 1974, 1976, 1979, 1982, and 1984 failed to gather enough valid signatures.^[677] Given that the state seems to have had majority support for the death penalty in the late 20th century,^[678] these referenda may have succeeded if sufficient signatures had been gathered. Maine legislators rejected several opportunities to refer death penalty reinstatement to voters.^[679]

• Country-by-country variation in ADPM success may be strongly influenced by the overall politics of a country on the left-right spectrum, but there are also correlations between success and low polarization and success and centralized government.

Studies frequently find that Republicans and conservatives are more supportive of the death penalty in the US.^[680] The relative electoral success of Democrats and Republicans has sometimes been important in determining whether the death penalty was abolished or not at the state level.^[681] The US generally seems more right-wing than Western Europe and has lower support for liberal causes such as abortion rights, environmentalism, and acceptance of homosexuality.^[682] This presumably discouraged receptivity to the ADPM in the US.

Canada,^[683] France,^[684] New Zealand,^[685] and the UK^[686] seem likely to have had slightly less political polarization than the US and have allowed politicians to vote as they liked on capital punishment debates without toeing their party’s line. However, the capital punishment debate in Canada, France, New Zealand, and the UK was arguably not much less polarized than the debate in the US, and there are many factors that may help to explain the differences in outcomes between the US and these countries,^[687] so this is very weak evidence that polarization should be avoided. In France and the UK, decreasing polarization seems to have occurred shortly before abolition, which lends some credibility to the claim that this factor was influential.^[688]

If political support for a policy becomes confined to fringe parties, this may also contribute to an erosion of public support for that policy.^[689]

• It may be easier to introduce and implement unpopular laws under centralized political systems.

Germany, the UK, and France all have greater centralized control of national legislation than is the case in the US; this may also help to explain the abolition of the death penalty in those European countries but not in the US.^[690]

• Lobbying and effective mobilization of legislators may be crucial for ensuring that favorable legislation is passed without major delays.

In New Jersey, abolition legislation had failed or been shelved a number of times. At one point, legislation was delayed until after an upcoming general election. At another time, the bill was sent through a second committee stage, breaking with convention. Throughout this process, interest groups and stakeholders lobbied legislators thoroughly.^[691] Given that the bill that eventually abolished capital punishment in New Jersey passed through the Budget and Appropriations Committee by a single vote in December 2007, former Republican New Jersey senator Robert J. Martin argues that:

In retrospect, it appears that the public and behind scenes political maneuvering of [Democratic] Senator Lesniak—as both prime sponsor and Committee member—proved crucial in assuring that the bill was not derailed by the Committee… Senator Lesniak privately assured that enough Democratic committee members would at least vote the bill out of committee, even though some might choose to reserve the right not to support it when it was voted on by the full Senate. Publicly, Senator Lesniak delivered another inspirational address as the lead witness (as first prime sponsor) on the bill.^[692]

The main Senate vote was likewise passed with the minimum number of favorable votes required. Martin and Lesniak had communicated to count the number of anticipated favorable votes^[693]; presumably, if they had believed that they would have had insufficient support, they would have deprioritized pushing for the legislation to be taken forwards. Nevertheless, the counterfactuals are unclear. Interest groups and legislators had been pushing anti-death penalty legislation in New Jersey for years,^[694] so failure of the legislation (at the committee stage or subsequently) may only have delayed abolition by a few months or years.

Some abolitionist states have had large numbers of bills to reinstate the death penalty in times of high public support.^[695] It seems likely that more proactive pro-death penalty lobbying efforts would have increased the chances that proposed legislation would have been successful, especially given that many bills simply died in the committee stage,^[696] but also because delays could push the bill into a time period without sufficient public support.

By comparison, there is little evidence that direct action tactics were effective at encouraging beneficial legislative outcomes for the US ADPM.^[697] However, the movement seems to have used these tactics infrequently,^[698] and the US ADPM has not been highly successful overall.^[699] Given that some social movements that had a substantial focus on direct action tactics seem to have been fairly successful,^[700] the failure of the US ADPM could be interpreted as further evidence that the use of direct action tactics is correlated with success. This case study therefore provides only highly ambiguous evidence on the effectiveness of direct action tactics.

• Institutional change on a particular social issue can be encouraged by growing momentum for change on related, partly overlapping issues, or by increasing the association of these issues with each other.

Support for death penalty abolition in international institutions seems to have been tied to support for human rights more broadly.^[701] Additionally, the increased support and mobilization for movements that advocated some form of moral circle expansion in the early 19th century, the Progressive era, and the 1950s and 1960s, such as those addressing civil rights and poverty, may have contributed to the restrictions on the death penalty and decline in executions.^[702] Indeed, one paper found that a measure of civil rights protests was significantly negatively correlated with public support for the death penalty and the number of executions in the US.^[703] The Furman ruling may also have been encouraged by a general trend towards progressive judicial activism at that time.^[704]

Intuitively, it seems more tractable for advocates to increase the association of the issues that they focus on with related, partly overlapping issues than to focus on driving the progress of those related issues themselves, though the history of the US ADPM does not offer direct evidence for the claim that this has been cost-effective in the past.

• Once influential international bodies adopt a value, they may exert pressure on institutions in other parts of the world to adopt the same value.

In the wake of the Second World War, international organizations and treaties adopted an increased focus on the “right to life,” including restriction or abolition of the death penalty, as part of an increased emphasis on the promotion of human rights.^[705] Since that time, several international treaties have called for the abolition of capital punishment.^[706] The European Union (EU) may have initially been reluctant to dictate whether its member states could or could not use capital punishment.^[707] However, perhaps encouraged by the increased number of abolitions within its member states, pressure from members of the European Parliament, and the example set by Amnesty International’s public advocacy, the institutions of the EU seem to have decided that pressuring member states to abolish the death penalty was desirable.^[708]

Although national governments have a choice regarding whether to end capital punishment, the growing number of countries that have chosen to do so^[709] seem likely to have been encouraged by a mixture of institutional pressure from the UN, EU, and Council of Europe (CoE), diplomatic efforts from abolitionist countries, and pressure from international and local NGOs.^[710]

A number of observational analyses suggest that international political institutions and international NGOs have significant effects on whether countries abolish the death penalty:

• Eric Neumayer (2008) found evidence that, “[d]emocracy, democratization, international political pressure on retentionist countries and peer group effects in relatively abolitionist regions all raise the likelihood of abolition.”^[711]
• Matthew D. Mathias (2013) found evidence that increases in emphasis on human rights by international political institutions and increases in the number of human rights international NGOs were significantly positively associated with the chance that a country would abolish the death penalty.^[712]
• Dongwook Kim (2015) found evidence that, “human rights international non-governmental organizations’ local engagement has strongly significant positive relationships with complete abolition” in a country.^[713]
• Similarly to Mathias (2013), Stefanie Neumeier and Wayne Sandholtz (2019) found evidence that, “[e]ach increase of one in the number of country-specific INGO [international non-governmental organization] hits increases the likelihood of abolition” in a country “by about twenty to twenty-five percent.” They also found that, “there is a strong, positive effect of Western Europe and Eastern and Central European regions on the likelihood of abolition,” which they interpret as evidence of the effects of the CoE and EU.^[714]

Sangmin Bae’s case studies of three countries that were “outliers” in their region suggest that international pressure was crucial in the abolition of the death penalty in the Ukraine, played some role (through Amnesty International) in encouraging a moratorium in South Korea, but played little role in abolition in South Africa.^[715] Neumeier and Sandholtz’s short case study of South Africa places more emphasis on pressure from the UN and from Amnesty International. International pressure is also seen as important in abolition in Lithuania. In contrast, Belarus, which has not abolished capital punishment, is described as lacking “several of the factors that are associated with abolition: democratic government, robust INGO activity, the incentive of membership in the EU and the COE, and independent courts.” Similarly, “thus far Japan has successfully resisted demands for abolition. Like in Belarus, NGOs do not have the ability to operate at full effect and face a variety of regulations and restrictions in Japan.”^[716]

These analyses form part of a wider scholarly debate about the importance of various factors in predicting whether a country abolishes the death penalty or not.^[717] They are supplemented by the impressions of experts. For example, criminologist Roger Hood (2009) argued that the debate on capital punishment in China “has moved from a defensive posture to one which is willing to embrace to a degree the human rights objections to capital punishment that have been created by a ‘new dynamic’ rooted in international human rights instruments and conventions, and promoted by abolitionist countries in Europe.”^[718]

The CoE was formed in 1949 in order to “unite Europe around the shared principles of the rule of law, respect for human rights and pluralist democracy.”^[719] Membership of the CoE has grown from 10 states in 1949 to 47 in 2019.^[720] European organizations have conducted various forms of advocacy against the death penalty, including:

• All members of the European Union (EU) have abolished capital punishment and a commitment to abolishing the death penalty became an important criterion affecting the ability of countries to join the CoE.^[721] There is evidence that the signing of the European Convention on Human Rights, which contains anti-death penalty protocols, had significant effects on the likelihood of abolition between the years 1960 and 2005.^[722]
• In 2011, the EU banned the export of eight drugs used in lethal injections, seemingly spurred into action by the campaign of the UK group Reprieve.^[723] Before this, the governments in Austria and Germany warned companies in their countries not to sell the drug to the US for executions,^[724] and the EU already had regulation in place that prohibited the export of goods that “have no practical use other than for the purpose of capital punishment.”^[725]
• The EU advocates for abolition in countries outside Europe through communications aimed directly at governments.^[726] It also seeks to encourage public debate on the death penalty in other countries, such as by organizing seminars.^[727]
• According to one article, “[t]he EU has given out more than 3.5 million euros ($4.8 million) [from 2009 to 2013] to seven groups for efforts to combat the death penalty in the United States.”^[728] It has also spent substantial sums of money to support abolition efforts in other countries.^[729] 
• The CoE has publicly advocated for the international rejection of the death penalty through the “European Day against the Death Penalty,” public announcements, speaking at conferences, videos, leaflets, and mass media campaigns in collaboration with national governments and NGOs.^[730]
• The EU has acted as amicus curiae to the US Supreme Court, advocating abolition of the death penalty.^[731]
• John D. Bessler notes that in the 21st century, “Canada, England, Italy and France have actually refused to extradite people to the United States in the absence of assurances that the death penalty would not be sought.”^[732] Since 1989, European human rights law has restricted extradition to states where the individual may be executed.^[733]

Nevertheless, many forms of currently existing international advocacy against the death penalty did not exist until the 1960s or later,^[734] so its importance in encouraging abolition should not be overstated; many countries had abolished the death penalty well before this.^[735] The US in particular is not highly susceptible to international pressure on this issue.^[736] The Supreme Court has, at times, explicitly rejected arguments based on practices in other countries when interpreting the Eighth Amendment,^[737] although Kirchmeier cites four cases where the Justices have given some weight to international opinion and interpretations.^[738] Additionally, debate and legal decisions often happen at the state level, rather than the national level.^[739]

• It is probably easier to abolish a practice through legislation if that practice is not in regular use.

Of the 12 states that have abolished the death penalty since Furman, 7 had not executed anyone in the 10 years before abolition, and the other 5 had executed only one or two convicts. By comparison, 5 states that retain the death penalty and all 4 states that are currently under gubernatorial moratoriums did not execute anyone between the years of 2008 and 2018. During the same period, 9 states executed five or fewer convicts but have retained the death penalty, and 11 states have executed more than five.^[740] In the US in the post-Furman period, then, having low numbers of recent executions seems to be a necessary but not sufficient condition for abolition of the death penalty. However, internationally, only 39% of the 54 countries that abolished the death penalty between 1989 and 2010 had not executed anyone for 10 years or more.^[741] Additionally, during the period before Furman, the relationship between the total number of executions in a state and whether the state had abolished capital punishment or not is less clear.^[742]

• Where advocacy for abolition of a practice fails, or has not yet succeeded, that advocacy may still encourage the practice to be restricted.

In the 18th and 19th centuries, reforms of capital punishment seem to have occurred despite the emphasis of various public intellectuals on abolition, rather than reform.^[743] Despite the preference of international institutions for the abolition of capital punishment,^[744] some countries have taken smaller steps to restrict the death penalty.^[745]

The Effects of Legislative Change

• Abolition of a practice seems likely to encourage public opinion to gradually turn against that practice.

Franklin E. Zimring and Gordon Hawkins (1986) note the results from two public opinion polls from the Federal Republic of Germany in 1948 and 1980; the percentage in favor of capital punishment was 74% and 26%, respectively, though the polls’ question wordings varied. Abolition occurred in Germany in 1949, shortly after the first poll.^[746] 

Zimring and Hawkins argue that when no major negative consequences arise from abolition, public opinion gradually turns against capital punishment.^[747] Public opinion in Germany did not seem to turn substantially against the death penalty until after 1964.^[748] It seems unlikely that legislative abolition would have had little to no effect on opinion for 15 years before suddenly having a dramatic impact.^[749] Nevertheless, Zimring and Hawkins cite Italy, Belgium, the Netherlands, Denmark, Norway, and Sweden as other examples of countries that abolished capital punishment long ago and now also have low public support for it, despite there being “no examples of [national] abolition occurring at a time when public opinion supported the measure.”^[750] Criminologists Roger Hood and Carolyn Hoyle list New Zealand, Australia, and Finland as further examples.^[751]

Of course, factors other than abolition could explain the fall in support for capital punishment in these countries, though some research has found significant effects of abolition after controlling for multiple exogenous factors. Kelley and Braithwaite (1990) analyzed survey responses by 3,012 Australians: They controlled for 18 other socioeconomic predictors of death penalty support and estimated that abolition within an Australian state reduces public support for the death penalty in that state from 66% to 61% over the course of 30 years but has no effect on overall preferences for punitive treatment of convicts.^[752] Steven Stack (2004) analyzed survey data from 17,725 respondents in 17 nations: Controlling for demographic variables, individuals’ punitiveness, confidence in the courts, religious fundamentalism, belief in free will, and their nation’s homicide rate, Stack found through logistic regression that, “[p]ersons residing in a retentionist state are fully 2.88 times as likely to support the death penalty as persons residing in an abolitionist nation… each year of abolition lowered the odds of an individual’s death penalty support by 46 percent.”^[753]

Though not conducting formal statistical analysis, a group of researchers commented that “Zimring and Hawkins’s conclusion that popular support for abolition inevitably increases with the passage of a few years is inconsistent with [US] opinion polls showing that attitudes concerning capital punishment differ little, if at all, between the residents of abolitionist and death penalty states. For example, after more than 150 years of abolition, most in Michigan still appear ready to reinstate capital punishment.”^[754] They did, however, find anecdotal evidence that longer periods of abolition in some states may have encouraged a decrease in the importance that voters in those states attached to death penalty issues.^[755] 

Of course, random variation and short-term factors^[756] may mean that total levels of support vary substantially from year to year. Although public support for capital punishment in the UK has been gradually falling,^[757] there was some initial fluctuation in levels of support shortly after abolition.^[758] The trends in France^[759] and Canada^[760] show some similarities to the UK. In other cases, abolition may appear initially to have little effect on public attitudes; Hammel comments that public support for capital punishment in Mexico was “largely unaffected” by abolition in 1929.^[761]

Several scholars of capital punishment argue that elites can change public opinion by adopting values themselves, implementing policy change in line with those values, and then waiting for the public to converge on this preference.^[762] The plausibility of these claims is dependent upon the confidence that one has in the evidence that public support for a practice diminishes after the abolition of that practice.

The history of nuclear power likewise suggests that, even if there is a temporary backlash to legislative changes to a practice, in the long term this effect is likely outweighed by the positive effects that familiarity has on attitudes.^[763] It is also possible that bureaucrats and legislators become accustomed to particular laws once they are passed and become unwilling to overturn them^[764]; abolition of a practice may generally be difficult to reverse, regardless of public opinion.

• Where eliminating a practice is intractable, it may be possible to suspend the practice pending substantial improvements or further research. However, the practice may be subsequently resumed without being substantially challenged.

Public support is higher for a moratorium on capital punishment than an outright ban; legal scholar Jeffrey L. Kirchmeier notes that, “[a]lthough one poll shows that sixty-six percent of Americans favor capital punishment, another poll shows that sixty-three percent of Americans favor a moratorium on executions until fairness issues are addressed.”^[765] According to Kirchmeier, the “prime sponsor” of Nebraska’s 1999 moratorium bill “was Senator Kermit Brashear, a Republican who favors the death penalty but is concerned about the fairness of the legal process.”^[766] Several states and countries have introduced moratoriums on capital punishment that have been succeeded by measures that effectively abolished capital punishment entirely, including Illinois,^[767] New Jersey,^[768] Washington,^[769] the United Kingdom,^[770] Canada,^[771] South Africa,^[772] Russia,^[773] Kyrgyzstan, Kazakhstan, and Tajikistan.^[774] California, Colorado, Oregon, and Pennsylvania are currently under moratoriums introduced by the state governors.^[775]

Of course, other states have failed to introduce moratoriums. For example, Alabama has had moratorium bills introduced into its Senate each year for ten years and into its House of Representatives each year for five years without any passing.^[776] Oklahoma,^[777] Maryland,^[778] and Tennessee^[779] introduced moratoriums on capital punishment which were subsequently revoked (though Tennessee’s moratorium was intentionally only for 90 days). Additionally, the litigation campaign by the LDF and ACLU from 1966 onwards led to a de facto moratorium on executions, which was then given legal weight by the 1972 Furman ruling.^[780] The ruling was understood by many as signifying the practical end of the death penalty in the US^[781] but failed to lead to outright abolition. Other nations have introduced moratoriums that have broken down.^[782] The risk of reversal is not limited to moratoriums, however:

• Several countries have abolished the death penalty, reinstated it, and then abolished it again.^[783]
• Many of the legislative abolitions in the Progressive Era were subsequently reversed.^[784]
• Between 1994 and 2015, 11 countries that had not executed anyone for 10 years or more resumed executions.^[785]

• Research groups and reports commissioned by governments seem likely to encourage further institutional reform.

The ADPM has combined the creation of research commissions with proposals for moratoriums on capital punishment, pending the results of the research. The creation of these research groups has often been associated with progress towards abolition:

• The creation of a research commission was combined with a moratorium on executions in Illinois,^[786] New Jersey,^[787] and South Africa^[788]; each of these moratoriums was followed up with full abolition. Nebraska attempted to do the same, but the legislature only successfully overrode the governor’s veto for the commissioning of research, so a moratorium was not implemented.^[789] 
• In Pennsylvania, legislation was passed to begin studying capital punishment in the state, and the governor has subsequently introduced a moratorium.^[790] 
• New Mexico’s abolition may have been encouraged by reports from the State Bar’s Task Force on the Administration of the Death Penalty in New Mexico and the Fiscal Impact Reports for proposed abolition bills.^[791] 
• Likewise, the UK’s Royal Commission on Capital Punishment was somewhat critical of the death penalty in 1953^[792]; this was followed (with a substantial time delay) by a suspension of capital punishment in 1965 and its abolition in 1969.^[793] 
• Canada’s commission was unusual in that it recommended the retention of the death penalty.^[794] Nevertheless, the publication of the report seems to have been accompanied by an increase in proposals for legislation to abolish capital punishment and an increase in commutations of death sentences to life imprisonment,^[795] with a legislative moratorium being subsequently implemented as a compromise.^[796] 
• A commission in Germany created after abolition voted not to recommend the reimposition of the death penalty by 19 votes to 4.^[797] 
• Amnesty International seem to have viewed the establishment of a research commission as important to US federal abolition efforts.^[798]
• The ALI withdrew its Model Penal Code in 2009 after the findings of a study it had commissioned.^[799]

Of course, these associations do not provide strong evidence that the research commissions themselves were effective in encouraging abolition; it may simply be that research commissions were established where there was already substantial momentum towards abolition. Additionally, Arizona, Arkansas, and Tennessee’s research commissions do not appear to have led directly to further progress.^[800] In Massachusetts, the House rejected an abolition bill that followed the report by a commission that had been appointed jointly by the House and the Senate to research capital punishment in the state.^[801]

Nevertheless, it seems plausible that legislators will be more open to the idea of making a commitment to radical institutional change that is conditional upon further research rather than making an unconditional, absolute commitment. In addition to the persuasive power that such research may have, the findings may offer politicians an excuse to distance themselves from views that they have previously espoused without seeming hypocritical. By comparison, proposed legislation relating to farmed animals could set a preliminary timeframe for the abolition of particular farming practices with a commitment to revisit the timeframe in the light of the findings of an appointed research commission.^[802]

• It seems possible that the successful implementation of some legislation may decrease the longer-term chances of success for a social movement.

At least some advocates in Colorado, Arizona, and Tennessee seem to have framed the abolition of the death penalty in those states in the early 20th century as temporary experiments. When those experiments appeared to fail, the legislation was reversed.^[803] Presumably the failure of these experiments reduced subsequent willingness to remove the death penalty. Indeed, none of those three states have subsequently abolished capital punishment.^[804] 

Initiatives or referenda have been used to reject legislative efforts to abolish capital punishment in Washington in 1975,^[805] California in 2012-16,^[806] and Nebraska in 2016.^[807] Though the long-term effects of these decisions are unclear,^[808] it seems likely that legislative and popular rejections of reform efforts would halt or delay subsequent efforts.

Haines argues that reforms in the mid-nineteenth century may have reduced the demand for further reform but provides no evidence for this specific claim.^[809] Likewise, legal scholars Steiker and Steiker raise the concern that legislative reform of the death penalty may have legitimated and encouraged the imposition of death sentences in a similar manner to judicial reforms,^[810] but they provide little evidence that this has occurred.^[811]

The successful abolition of the death penalty in several states despite earlier legislation that restricted the death penalty provides weak evidence that, if incremental legislation generates complacency, that complacency is minimal. For example, New Hampshire banned the death penalty for juvenile offenders in 2005, then, in 2019, abolished the death penalty entirely, suggesting there was no prohibitive rise in complacency during those 14 years. Before abolishing the death penalty in 2013, Maryland restricted the death penalty in 1987, 1989, and 2013 and was temporarily under a moratorium from 2002, suggesting no prohibitive rise during those interludes. However, legislation for abolition in Colorado and Kansas was narrowly rejected in 2009 and 2010, despite those two states having previously banned the execution of intellectually disabled convicts. Though the counterfactual cannot be assessed, it is at least possible that complacency generated by the earlier reforms caused the abolition legislation to fail.^[812]

Unlike the US,^[813] England continued to use hanging for executions until the abolition of the death penalty in 1969, as did Canada until its last execution in 1962, and France continued to use the guillotine until the death penalty was abolished in 1981.^[814] Many other countries have skipped some of the incremental steps that other countries have taken but have nevertheless abolished capital punishment.^[815]

• Social movements should avoid incremental tactics that have a high risk of backfiring and protecting the targeted institution.

Legal scholars Steiker and Steiker note that:

When the ALI [American Law Institute] embarked on the MPC [Model Penal Code], its advisory committee voted overwhelmingly to recommend the abolition of capital punishment. But the ALI’s council and membership concluded that the MPC could be more influential if the organization remained agnostic about retention of the death penalty and instead focused on ways to improve the administration of the death penalty in those jurisdictions that retained it. Nonetheless, states essentially ignored the reforms embodied in the MPC approach over the next decade, until the Court’s condemnation of standardless discretion in Furman left states searching for new capital statutes that would satisfy the confusing Court mandate. Then, the death penalty provisions of the MPC served as a blueprint for many of the new statutes, and when the Court upheld the guided discretion statutes in 1976, it highlighted the similarities between the new statutory schemes and the MPC approach. The work of the ALI appeared to contribute to the Court’s decision to uphold three of the new statutes and to permit narrowed use of the death penalty going forward. In this respect, the MPC provisions not only offered guidance for ‘improving’ the American death penalty, but they also were instrumental in saving it from constitutional abolition.^[816]

The ALI commissioned reports into capital punishment by known advocates of abolition shortly before its policy changes in 1962^[817] and 2009,^[818] suggesting that the ALI was interested in fundamentally challenging capital punishment and that the decision not to advocate explicitly for abolition was, at both points, motivated by strategic considerations. It is possible that the states would have managed to reform their capital punishment statutes anyway and that some sort of middle path between abolition and contemporary practice would have been formed regardless whether the MPC had been created. However, it seems likely that the ALI’s MPC sped up capital punishment’s recovery after Furman and provided it with greater credibility.

• Social movements should proactively ensure that professionalization and shifts towards legal strategies do not discourage the growth of grassroots efforts (e.g. broad participation, non-professional, decentralized) that may be more effective longer-term.

Haines argues that, “[t]he rise of litigators to a dominant position in the movement” in the 1960s and early 1970s “had contributed to the withering away of whatever was left of citizen-based, political abolitionism.” In support of this, Haines cites interviews with two anti-death penalty activists, Hugo Bedau, the director of ALACP who had been involved in legislative campaigns in Oregon and New Jersey, and Henry Schwarzschild, who apparently opposed the ACLU’s suggestion to create “an ACLU Capital Punishment Information Project” because the death penalty was already “withering away” and feared that a “new public campaign” could “unleash a massive backlash.”^[819] Substantial resources may have been used in the LDF’s campaign.^[820] Legislative efforts in California seem to have been deprioritized in the wake of Furman^[821] and legislative campaigns remained a low priority even as widespread legislative backlash occurred.^[822] The Furman ruling did not hold that capital punishment was inherently unconstitutional^[823] and so should not have necessarily prohibited further legislative restrictions on the death penalty.

Though it is difficult to assess the counterfactual, if the ADPM had invested more of its resources in building a strong legislative and grassroots movement, it may have been better placed to minimize the negative effects of the legislative backlash to Furman.

In contrast to the development of the pre-Furman ADPM, the group New Jerseyans for a Death Penalty Moratorium used a litigation strategy alongside its legislative and grassroots efforts; the litigation encouraged a de facto moratorium on executions, which was subsequently confirmed by the legislature.^[824] In Germany, the UK, and France abolition was achieved through legislation, though key legislators were supported or advised by legal experts.^[825]

The history of the US prisoners’ rights movement provides further evidence that social movements based heavily on litigation strategies are fragile.^[826]

Disruption to companies

• Disruptive tactics may be effective at reducing the supply of targeted services but may have unintended negative effects.

Activists’ pressure on suppliers of the drugs used for lethal injections seems to have successfully disrupted the supply of these drugs.^[827] However, these tactics seem to have also had some counterproductive effects:

• Seven states introduced laws to protect the identity of lethal injection drug suppliers in 2007-13,^[828] although some of these laws may have been introduced before activist pressure on drug suppliers began.^[829] Governments seem likely to be less closely partnered with companies that supply animal products, so equivalent campaigns in the farmed animal movement may provoke less of a regulatory backlash.
• With no access to sodium thiopental, states have turned to other drugs that may have caused more suffering to those being executed.^[830] The focus on nondisclosure of suppliers may also distract attention from the issue of last minute disclosure of the method of execution, which may cause anxiety the convict.^[831] This suggests that supply-side interventions can have indirect effects that increase suffering.

• Companies are more likely to succumb to pressure to stop selling a particular product type if it makes up only a small proportion of their profit margins.

The Danish company Lundbeck halted sales of pentobarbital, a drug used in lethal injections after pressure from the UK campaign group Reprieve;^[832] a spokesperson noted that sales of pentobarbital in the US made up less than 1% of Lundbeck’s revenues.^[833] In contrast, the small company Dream Pharma, run by one man and selling only three drugs, seems to have ignored Reprieve’s campaign until the UK government banned the export of drugs for use in lethal injection.^[834] This situation parallels the struggles over marketization of emergency contraception in the US, which were resolved through the setting up of a small, single-product company.^[835]

Movement Composition

• Social movements can collaborate to challenge institutions, though collaboration may be temporary or unreliable.

The LDF worked harder on anti-death penalty litigation than might have been expected, given that capital punishment was only partly a racial issue.^[836] Likewise, the ACLU’s involvement in capital punishment went beyond its usual focus on “defensive” litigation. Haines also characterizes the ACLU mandate as having “no unambiguous grounds for including execution.”^[837] Even though the long-term effects of Furman were plausibly damaging to the ADPM, the securing of a Supreme Court ruling in the direction that the LDF and ACLU intended (that is, towards greater restriction of the death penalty) provides an example of where actors with differing motives have been able to work together to substantially challenge an institution.

Additionally, the group Queer to the Left campaigned for commutation of the sentences of all death row inmates in Illinois in 2002^[838] and there has been substantial overlap between the prisoners’ rights movement and the ADPM at times.^[839] Haines notes that, “the National Coalition to Abolish the Death Penalty was built on the foundation of a coalition that had originally been formed to seek amnesty for Vietnam War draft resistors. Religious groups were especially well represented within this predecessor coalition.”^[840] One study also found that “multi-issue groups are predicted to have 90 percent more public donations than groups with a single-issue agenda.”^[841] 

Nevertheless, multi-issue groups may give advocacy on specific issues low priority, even at crucial times, as seemed to be the case with the ACLU during the legislative backlash after Furman.^[842] Likewise, Banner and Haines have argued that the breadth of focus of reformers in the 19th century contributed to the ineffectiveness and fragility of the ADPM.^[843] More recently, the ADPM has struggled to secure active support from civil rights advocates.^[844]

This highly collaborative approach may be more common, and more inevitable, in movements like the ADPM where the size of the movement (e.g. full-time advocates, funding of organizations) is low relative to the public salience.

• Formal alignment with the leadership of religious groups may not translate into substantial support from those leaders or from community members

Although national religious groups have had official polices in opposition to the death penalty^[845] and some religious groups were formal affiliates of the NCADP,^[846] Henry Schwarzschild, the NCADP’s main organizer, lamented in 1983 that, “[t]he churches as a group have been very disappointing on this issue. While they have been generally supportive, they have not made a vigorous commitment, either in terms of staff, program or money. And they have certainly not exercised any sustained or visible moral force on what is essentially a moral issue.”^[847]

Citing several surveys, Haines adds that:

Expressed support for capital punishment among self-identified Protestants has roughly equaled that of the population as a whole [from 1974 to 1996], and Catholic support has tended to exceed the national average slightly through the late 1980s. When the Presbyterian Church USA surveyed its congregations, it found that roughly three out of every four of their pastors favored abolition of the death penalty, but that more than three-fourths of the members of their churches supported its retention. They had never before uncovered a wider split on any social or religious issue. In this and other denominations, the problem seemed to be that supportive clergy were often reluctant to address the issue of capital punishment in more than a passing way or to try to press their congregations into action for fear of alienating them.

This indifference to the ADPM among religious leaders suggests that proactive outreach to religious organizations may not be cost-effective. This contrasts with the history of the anti-abortion movement, which received substantial financial and organizational support from the Catholic Church despite the mixed attitudes regarding abortion among the Catholic population.^[848] The substantially lower public support for abortions on demand than for the death penalty may be an important factor in explaining this difference.^[849] Different issues may have inherently different levels of appeal to religious communities, where some can easily inspire advocacy and commitment while others compel only a moderate, verbal support.

• Positive involvement from those who are widely understood to be the victims of a social movement may be useful for gaining interest and sympathy from the public.

The ADPM has some involvement from the families of murder victims.^[850] In 1992, Murder Victims’ Families for Reconciliation organized the “Journey of Hope”, involving 17 days of activities, such as marches, rallies, concerts, film showings, and planting trees. The event only had about 300 participants but was covered, according to Haines, in “more than 60 newspaper articles and 30 broadcast interviews. It was even credited by an Indiana public defender with helping to avoid death sentences in three capital trials that were taking place that summer.”^[851] If other advocates seem considerate of these victims, their efforts may also gain wider recognition and support than they otherwise would; this may help to explain why sister Helen Prejean’s advocacy was well-received.^[852]

• Issues that have substantially differing levels of support among different political parties will not necessarily split into entrenched, polarized, party agendas.

Despite some evidence of party polarization,^[853] the Republicans and Democrats do not seem to have developed entrenched, polarized, party agendas, or, at least, major political figures have sometimes deviated from the longer-term norms in their party. For example, Democratic president Bill Clinton made a display of his support for capital punishment and supported pro-death penalty legislation,^[854] George Ryan, the Republican governor of Illinois, imposed a moratorium on executions then granted clemency to all prisoners on death row in the state,^[855] and abolition in New Jersey was secured by a mixture of Democratic and Republican legislators.^[856] This situation contrasts somewhat with the greater polarization on abortion issues that developed over the course of the 1970s and 1980s.^[857]

• Social change may be more likely to occur if credible professional groups advocate for change before broader participation and pressure is encouraged.

From the 1930s, popular support for capital punishment began to decline in the US,^[858] and by the late 1950s, the US ADPM was building momentum through state legislative campaigns to abolish capital punishment.^[859] Subsequently, from 1966, with the arrival of the LDF’s moratorium campaign, legislative efforts seem to have died down.^[860] Although the moratorium campaign culminated in the Furman ruling, this temporary victory did not last and may have caused long-term damage.^[861] 

In contrast, the initial impetus of the moratorium campaign of the 1990s was first driven by European political institutions, the American Bar Association, and Supreme Court justices,^[862] the efforts of which have subsequently been supplemented by grassroots initiatives.^[863] Though the long-term results of this campaign are unclear, it is winning some incremental victories^[864] that seem likely to provide a basis for a more sustainable challenge to the death penalty.

These characterizations of the US ADPM in the 1950s to 1970s as first grassroots-driven, then professionally-driven, and of the US ADPM in the 1990s to present as first professionally-driven, then grassroots-supported, are both simplifications. Arguably, the efforts at legislative reform in the 1950s and 1960s were not much less professionally-driven than the subsequent litigation efforts,^[865] and Amnesty International USA had already begun some grassroots work in the 1980s.^[866] If this characterization is understood to be broadly accurate, however, it provides weak evidence that advocacy will be more effective when it is driven initially by professional groups and only subsequently supported by grassroots advocacy. Supporting grassroots efforts may not be needed at all; legal scholar Andrew Hammel has shown that abolition of the death penalty in Germany, the UK, and France was driven by educated elites, such as writers, legislators, and litigators.^[867]

Timing

• Whether the use of disruptive strategies should be prioritized over slower, lower-risk strategies depends on ongoing social trends.

In the 1950s to 1970s, execution rates and public support for capital punishment were decreasing, but these trends were temporarily reversed. This was likely partly because of the Furman ruling, which in turn was likely partly encouraged by the litigation strategy of the LDF and ACLU.^[868] Given this and evidence that low numbers of executions may be a necessary but not sufficient condition for abolition of the death penalty,^[869] delays in the use of litigation tactics may have improved the chances of abolition. If the ADPM had invested more of its resources in building a strong legislative and grassroots movement and invested fewer resources in litigation, then radical judicial change may not have occurred as early. Perhaps a similar effect could have been achieved if the ADPM had focused more on absolute ethical arguments, rather than supplementary arguments such as arbitrariness.^[870]

These timing considerations seem likely to be specific to the context of the US ADPM. A generalization for other movements is that if current social trends are weakening an institution, slow and low-risk advocacy strategies (such as using tactics that develop a strong grassroots support base) seem preferable to disruptive but risky strategies (such as using litigation to force unpopular, radical, legal change). If current social trends are strengthening an institution, then disruptive, risky strategies seem preferable to slow, low-risk strategies.

• The interaction of particular social movement strategies with wider hard-to-influence factors affects the chances of a movement’s success.

Legal scholars Steiker and Steiker (2016) argue that, counterfactually, slight changes in the course of events may have caused permanent abolition:

• If the Supreme Court had taken interest in capital punishment’s constitutionality “between 1963 and 1968, when Earl Warren was still chief justice and before Nixon was elected president,” the ruling might have been less fractured, taken place in a more favorable national political context, and positioned the US “at the forefront of the wave of abolition that swept Europe in the 1970s through the 1990s.”^[871] There is indeed evidence that unanimity in Supreme Court rulings discourages backlash, though this evidence is not strong, and the effect may not be substantial.^[872] 
• The court might have also produced a more unanimous ruling if Democratic candidate Hubert Humphrey had won the 1968 election instead of Richard Nixon.^[873]
• If the ruling in Furman had not invalidated the existing death penalty statutes, there may have been no backlash, and the death penalty may have “continued to wither.” There may also have been less judicial regulation of the death penalty generally.^[874]

In addition to Steiker and Steiker’s arguments, a number of more indirect or implausible changes in the course of history may also have led to the abolition of the death penalty.^[875] 

Messaging

• Publicizing opinion poll findings that are more favorable to reform of an institution further encourages support for reform.

A paper by social scientist David Niven notes that media coverage of public opinion on the death penalty often rests on the question wording used by Gallup: “Are you in favor of the death penalty for persons convicted of murder?” However, other surveys have found much lower support when questions also offer alternative punishments for murder, such as life without parole.^[876] Of the 4,190 media articles identified by Niven that were published between May 1, 1996 and April 30, 2001 and referenced polls on capital punishment, only 7.5% mentioned popular support for life without parole or life without parole plus restitution. In an experiment where 564 participants were randomized to receive a typical media article, an article focusing on the popularity of life without parole plus restitution, or a control article, the participants who read the life without parole plus restitution article had significantly lower support for the death penalty and significantly greater optimism that the death penalty would decrease.^[877]

Table 2: Results from David Niven’s experiment.^[878]

Four of the seven New Jersey activists interviewed for one article expressed the belief that emphasizing the prospect of life without parole as an alternative to capital punishment had encouraged success in that state in the 2000s.^[879] New Jerseyans for a Death Penalty Moratorium had also commissioned polls that identified a decline in support for the death penalty in New Jersey.^[880] Before abolition legislation was signed in 2011, advocates in Illinois publicized the results of a poll that found over 60% of voters preferred life without parole to the death sentence.^[881]

• A book by an impartial and credible author could become highly influential.

In 1993, the Roman Catholic sister Helen Prejean published the book Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. The book attracted attention and credibility for the anti-death penalty cause:

• The book “became an instant New York Times bestseller,”^[882] despite many other books being published on the topic and having low circulations.^[883]
• The book was made into a film that won an Academy Award. It was also made into an opera.^[884]
• The book sold 30,000 copies before its release and approximately 300,000 after its release.^[885]
• Prejean was one of the representatives who handed a petition for a worldwide moratorium on the death penalty to UN Secretary-General Kofi Annan in 2000; 3.2 million people had signed it.^[886]
• In 1998, 1999, 2000, and 2001, Helen Prejean was nominated for the Nobel Peace Prize.^[887]

Factors that may help to explain the success of the book include:

• Prejean seemed concerned about victims’ families. Kirchmeier notes that, “[a]lthough conservatives often dismiss anti-death penalty arguments because they believe that the reformers are not sufficiently concerned about the victims of violent crimes, both the book and the movie devoted substantial time to the victims’ families. Thus, the works attempted to show the issue and all of the complex human emotions that went with it in real life.”^[888]
• Prejean appeared to come from an honest, impartial perspective.^[889]
• Prejean travelled around the US giving talks about the death penalty.^[890]

• As people become more aware of a topic, aggregate attitudes may shift, but polarization may also occur, and legislative change may become less tractable.

A study conducted in 1976 in the US and another study conducted in 1981 in Canada (neither country was executing criminals at the time the study was conducted there) found evidence that as knowledge of the death penalty increased, opinions became more hostile towards the death penalty.^[891] Another study found low knowledge of the death penalty among students; after being taught about the death penalty for 40 hours by Robert M. Bohm or his colleagues and asked to read The Death Penalty in America (1982), written by Hugo Adam Bedau (an anti-death penalty activist), these students reported more opposition to the death penalty, at least in most of the tests.^[892] One study found in Northern Carolina found that its respondents “were generally ignorant on factual issues related to the death penalty, and indicated that if their factual beliefs (in deterrence) were incorrect, their attitude would not be influenced.”^[893] Three other studies measured students’ views before and after classes on the death penalty, and two of these found significant changes in attitudes.^[894] A 2002 poll found that 55% of a panel selected randomly from the Bulgarian population supported capital punishment before deliberation but just 34% supported it after deliberation.^[895]

Some of these studies suggest that opinion on the death penalty can be changed by increasing knowledge of the topic. However, there are several limitations to these findings^[896]:

• Other studies failed to find such an effect.
• Opposition to the death penalty became a majority position in only some of the tests that revealed changes in attitude toward the death penalty.
• Bohm’s study found that opinions measured two to three years’ following the intervention “had rebounded to near their initial pretest positions.”^[897]
• The studies required participants to read, listen to, or discuss a large amount of material, which means changing opinions in this manner is likely to be highly costly.
• Bohm’s study and possibly some of the others seemed to emphasize an anti-death penalty perspective. It is unclear whether attitudes would have changed to a similar degree if the information provided was more heavily weighted towards pro-death penalty arguments.

Desires for harsh punishment of offenders may be ingrained in human nature, so this may be an especially intractable issue for public education campaigns.^[898] However, there are a number of findings from wider research in psychology, behavioral economics, and political science that also suggest that opinions are unlikely to change solely based on new information.^[899]

Carol Steiker has argued that the success of the innocence frame in building opposition to capital punishment (discussed below) and the gradual conversion of Justices Powell, Blackmun, and Stevens to anti-death penalty views as indirect evidence that increases in knowledge about capital punishment in turn increase opposition to capital punishment.^[900]

A study in 1979 provided undergraduate students with a mixture of information on the death penalty and found that opinions became more polarized rather than consistently more hostile towards the death penalty.^[901] A subsequent study asked about the death penalty, the death penalty for minors specifically, and five unrelated social issues. The authors concluded that, “arguments incompatible with prior beliefs are scrutinized longer, subjected to more extensive refutational analyses, and consequently are judged to be weaker than arguments compatible with prior beliefs.”^[902] Additionally, Bohm’s study (conducted in 1985-9) found some evidence of polarization after receipt of the information and that, “it may be more difficult for subjects to change their positions if they have to publicly announce their death penalty opinions.”^[903] These findings suggest that as the salience and public knowledge of a topic increases, the overall tractability of changing attitudes in a particular direction decreases; this is also a finding of the political science literature on attitude change following from Supreme Court rulings.^[904]

A single legislator seems to have been influential in pushing abolition through Alaska’s legislature in 1957, at a time when other legislators were fairly indifferent to the issue.^[905] Subsequently, capital punishment issues seem to have increased in salience among Alaskan legislators, but multiple efforts to reinstate the death penalty failed in committee stages.^[906] Similarly, there were repeated rejections of legislative attempts to reinstate the death penalty in Michigan, despite majority public support for the death penalty in the state and increasing salience of death penalty debates at the national level.^[907] Comparing Alaska in 1957 to Michigan and to Alaska at later time points suggests that individual legislators may be able to have more influence (and therefore that legislative change through the lobbying of a small number of legislators may be more tractable) in contexts in which the salience of an issue is low and other legislators are not yet committed to particular positions. Relatedly, there is some evidence that abolition was only successfully implemented in some states during the Progressive Era because of indifference and uncertainty among the public and legislators.^[908]

• Messaging that includes supplementary arguments attracts broader support. When using supplementary arguments, advocates should focus on issues that seem unlikely to be fixed without abolition of the targeted institution to minimize the risk that they will backfire in the long term.

Attorney Jolie McLaughlin argues that there was “interest-convergence” on the issue of the cost of the death penalty among legislators and anti-death penalty advocates after “a deliberate effort by anti-death penalty advocates throughout the country to bring economic arguments to the public’s attention.” McLaughlin sees this as one reason that the ADPM began “gaining speed,” as demonstrated through the legislative changes in New Jersey and elsewhere from 2007.^[909] The cost argument may have been influential in Kansas in 1987, Alaska in 1991, and Minnesota in 1991.^[910] If animal-free food technology becomes cheaper than conventional animal products, then this evidence suggests that the use of the cost argument could be a powerful messaging tool for animal advocates.

It is also possible that from the late 1990s, the increased discussion in the media regarding the innocence of convicted felons sentenced to death has contributed to the declining support for capital punishment,^[911] though a number of other factors may help explain this trend.^[912] One experiment found weak evidence that arguments focusing on the innocence of some of those sentenced to death resonate more with those who read such arguments than moral arguments about the death penalty.^[913] Another experiment found that there was a significant decrease in support for capital punishment among an intervention group that read an essay about the chances of sentencing an innocent, though there was also a significant decrease among an intervention group that read an essay about deterrence research.^[914] Bohm concluded that after students were taught about the death penalty for 40 hours, “when opinions about the death penalty do change, it is most likely because of administrative reasons such as racial discrimination or executing innocent people.”^[915] A poll from 2007 found that 87% of respondents reported that they believed there was at least “some chance” that an innocent person had been executed “over the past 15 years or so”; 55% of these respondents also reported that this had “affected” their views on the death penalty.^[916] Stephen Smith notes that, “[f]rom 1977 to 2002, eighty percent of all clemency grants in capital cases nationwide were based on questions of legal or factual error”^[917]; these supplementary arguments may therefore be more persuasive (or at least more politically convenient) to legislators than ethical arguments. Political scientists Frank R. Baumgartner, Suzanna L. De Boef, and Amber E. Boydstun (2008) have argued that the persuasiveness of the innocence frame may have encouraged other anti-death penalty arguments to be discussed in the media as well.^[918]

There is some evidence against the claim that the inclusion of supplementary arguments has made the ADPM’s messaging more effective. In three separate experiments, Lawrence D. Bobo and Devon Johnson (2004) randomized participants to either receive or not receive a short statement about the disproportionate number of black people on death row, the higher sentencing rates when a victim is white, and the number of innocent people who have been sentenced to death. None of these three manipulations had a significant effect on participants’ support for the death penalty (though the last had a p value of 0.06).^[919] 

Lowe’s analysis of the ADPM’s public-facing statements in newspapers suggests that changes in the use of instrumental arguments did not have a substantial effect on public support for the death penalty. Lowe finds that there was a divergence between the use of moral and instrumental frames around 1980.^[920] This change occurred after the rapid increase in public support for the death penalty had begun in 1972,^[921] and the distance between the use of moral and instrumental frames remained similar as public support declined again in the mid-1990s.^[922] Kirchmeier summarizes that, “[p]olls show that about two-thirds of death penalty opponents are against the death penalty based on moral grounds.” This suggests that moral arguments may have greater weight among the public overall, though it does not mean that moral arguments are more effective at changing people’s beliefs.^[923]

Additionally, an emphasis on concerns about the procedures of an institution rather than its fundamental character suggests that if these concerns are sufficiently dealt with then there is no need for the abolition of the institution. Arguments for a moratorium or abolition of the death penalty that focus on the innocence of some convicts tacitly accept the legitimacy of the death penalty for guilty persons and could backfire if technological improvements (such as in DNA testing) make it easier to more confidently establish guilt and innocence.^[924] Pro-death penalty legislators have coopted the language of concern about innocence in their efforts to expand the death penalty.^[925] A focus on improving fairness in the procedures of death sentencing and execution could similarly legitimize the use of capital punishment.^[926]

• Moral arguments are important for activist mobilization.

Sociologist Sandra Jones interviewed 49 activists affiliated with the NCADP and found that 80% of interviewees “expressed moral outrage about our nation’s use of the death penalty” when asked about the factors that mobilized them to participate in the movement.^[927] Other motivations were less universal. For example, 50% of the interviewed African American activists but only 10% of the interviewed white activists identified “concerns with racial disparities as driving their activism.”^[928]

• A small number of thoughtful actors can play a role in promoting particular frames of discussion of a topic.

Baumgartner, De Boef, and Boydstun (2008) note that there was a gradual rise in exonerations and in DNA testing and yet a sudden spike in “attention to the concept of innocence.” They see a number of factors as contributing to “a mutually reinforcing process” and “cascade of social change… due not to any single factor but to the combination of many”^[929]:

The innocence frame, as we understand it, began to take shape in academic research and volunteer activism that, although noteworthy, went all but unnoticed. Meanwhile, through the concerted efforts of pivotal scholar activists such as David Protess, Rob Warden, and Lawrence Marshall, the innocence frame came to penetrate a key state — Illinois. Some of the first organizations that would come to be known as innocence projects took root here, and provided the momentum for the cascade of redefinition that would not stop at the state lines. In addition to organized educational efforts, this cascade was fueled by the Chicago police torture and abuse scandal still tormenting Illinois in the late 1990s and an unlikely governor who had no particular interest in issues of innocence before becoming concerned about problems under his watch but who nevertheless became the national symbol for changing social understanding of the debate. These changes in Illinois provoked a surge of national attention to wrongful conviction, not only by the public but also by Congress and even former Texas governor George W. Bush. Finally, the innocence frame is undoubtedly responsible, at least in part, for landmark decisions restricting the death penalty offered by a decidedly conservative Supreme Court.^[930]

These researchers argue that the creation of “innocence projects” in universities by attorneys and professors of law or journalism that make use of student volunteers was possibly the element “that has had the greatest impact on the rise of the innocence frame social cascade,” because the identification of errors in the system by unpaid students may have been more persuasive to the public than the successes of professional attorneys.^[931]

Changes encouraged by advocates may also lead to substantial changes that permit frame realignment. For example, the wave of international abolitions of capital punishment since 1989^[932] that has been encouraged by European abolitionist institutions^[933] has permitted a move away from acceptance that each nation has a sovereign right to decide its capital punishment laws and towards the notion that the death penalty violates “universally accepted human rights.”^[934]

• The changing tone of media coverage can have significant effects on public opinion.

Baumgartner, De Boef, and Boydstun (2008) conducted multiple regression to analyze the correlates of changes in public opinion on the death penalty in the years 1976 to 2006. Their dependent variable was an index that combined the results of 292 public opinion surveys.^[935] They found that both the number of homicides (regression coefficient = 3.4, p < 0.001) and a measure of the “net tone” of The New York Times’ coverage of the death penalty (regression coefficient = 0.15, p < 0.05) — the “number of pro- minus the number of anti-death penalty” stories — had significant effects on the “[l]ong run (equilibrium) opinion,” but not on public opinion in the short-run, i.e. the same quarter of the year in which the change occurred.^[936] They conclude from this analysis that, “[a]cross the range of the data... we see comparable effects on the change in equilibrium levels of net support for the death penalty due to net tone and to homicides, about eight percentage points in each case.”^[937] Using similar methods, they also found that the rate of death sentencing passed down by juries was “almost four times more responsive to net tone than to homicides.”^[938] While this is correlational analysis, it is some evidence of a causal relationship and is supported by general impressions of the timeline.

Legal scholar Andrew Hammel hypothesizes that critical coverage of George Bush’s executions in the European media may have contributed to continued declines in public support for capital punishment there,^[939] though this is just one of multiple plausible explanations for the decline. Other scholars have hypothesized that the media contributed to increases in public support for capital punishment in the late-twentieth century.^[940]

• The writings of academics and intellectuals may be effective for influencing educated elites.

Given that educated elites such as legislators and litigators seem to have driven progress towards abolition in Europe,^[941] the anecdotal evidence suggesting that European elites were influenced by the writings of academics and intellectuals^[942] seems important. However, these writings were only one of several contributing factors to the changing opinions of European elites on capital punishment. Other factors included:

• The increasing pressure from European institutions to abolish the death penalty.^[943]
• The rising costs of capital punishment as the expectations of the strength of the evidence of guilt required to put a convict to death rose.^[944]
• The media’s framing of debate.^[945]

Potential Items for Further Study

How did the ADPM develop in other nations? Was it more or less successful than the US ADPM? What effects did the strategic factors considered here have in those countries? Although this report has briefly considered other countries, it has done so mostly with reference to comparative or quantitative works and to Canada, France, Germany, and the UK specifically; more thorough case studies of countries beyond the US could be informative.

How does the history of the ADPM compare to the history of movements to improve the rights and wellbeing of convicts in other contexts? Sentience Institute intends to publish a shorter, additional case study focusing on this question.

To better understand the effects of abolition on public support for capital punishment, it would be helpful to compare public opinion at fixed intervals before and after abolition for all abolitionist countries where sufficient public opinion data can be identified. It would also be helpful to compare the trends of public opinion in countries that have abolished capital punishment with those that have retained it.

A content analysis of the news coverage of the death penalty could more confidently establish or reject the hypotheses listed in the “Strategic Implications” section on the causes of increased issue salience.

Many of the potential items for further study of the anti-abortion movement suggested in Sentience Institute’s previous report^[946] could be adapted as items for further study of the US ADPM. For example:

• A more detailed analysis of the legal history of the US ADPM could provide more actionable insights for the judicial strategy of advocates seeking to secure rights for animals, such as through legal personhood.
• Interviews with anti-death penalty advocates and their opponents or surveys of the current US population could lead to further insights and provide evidence on questions more specifically tailored to the interests of the farmed animal movement.
• A systematic check through the annual reports of all identifiable anti-death penalty organizations could be informative, if they are accessible.
• Are there important contributions in the historical and social scientific literature on the US ADPM that I have not included here?

Many of the strategic implications from this report could be further analyzed in the context of other social movements. For example:

• Has legislation that was contrary to public opinion at the time of its implementation encouraged a shift in public opinion and prioritization in the long-term?
• Have professionalization and shifts towards legal strategies caused problems for other movements?
• Has the tactic of suspending a practice while awaiting further research been effective in other contexts?
• Do procedural reforms of the practices and institutions targeted by other social movements seem to have legitimated those practices or institutions by making them seem more humane than is the case in practice?

Selected Bibliography

Acker, James R., Robert M. Bohm, and Charles S. Lanier (eds.) America’s Experiment with Capital Punishment (Durham, NC: Carolina Academic Press, 1998).

Bae, Sangmin, When The State No Longer Kills: International Human Rights Norms and Abolition of Capital Punishment (New York: State University of New York Press, 2007).

Banner, Stuart, The Death Penalty: An American History (Cambridge, MA: Harvard University Press, 2009).

Baumgartner, Frank R., Suzanna L. De Boef, and Amber E. Boydstun, The Decline of the Death Penalty and the Discovery of Innocence (Cambridge University Press: New York, 2008).

Behrmann, Christian, and Jon Yorke, “The European Union and the Abolition of the Death Penalty,” Pace International Law Review Online Companion 4, no. 1 (2013), 1-78.

Bessler, John D., “Revisiting Beccaria’s Vision: The Enlightenment, America’s Death Penalty, and the Abolition Movement,” Northwestern Journal of Law and Social Policy 4, no. 2 (2009), 195-328.

Bohm, Robert M., Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States (New York: Routledge, 2016).

Dardis, Frank E., Frank R. Baumgartner, Amber E. Boydstun, Suzanna De Boef, and Fuyuan Shen, “Media Framing of Capital Punishment and its Impact on Individuals’ Cognitive Responses,” Mass Communication and Society 11, no. 2 (2008), 115-40.

“State by State,” Death Penalty Information Center, accessed October 16, 2019, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/.

Fan, Mary D., “The Supply-Side Attack on Lethal Injection and the Rise of Execution Secrecy,” Boston University Law Review 95, no. 2 (March 2015), 427-60.

Galliher, John F., Gregory Ray, and Brent Cook, “Abolition and Reinstatement of Capital Punishment during the Progressive Era and Early 20th Century,” Journal of Criminal Law and Criminology 83 (1992), 538-76.

Galliher, John F., Larry W. Koch, David Patrick Keys, and Teresa J. Guess, America without the Death Penalty: States Leading the Way (Boston: Northeastern University Press, 2002).

“Death Penalty,” Gallup, accessed June 28, 2019, https://news.gallup.com/poll/1606/death-penalty.aspx.

Haines, Herbert H., Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972-1994 (New York: Oxford University Press, 1996).

Hammel, Andrew, Ending the Death Penalty: The European Experience in Global Perspective (Basingstoke, UK: Palgrave Macmillan, 2010).

Harris, Jamie, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion.

Hood, Roger, and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective (Oxford: Oxford University Press, 2015).

Hoover, Andy, and Ken Cunningham, “Framing, Persuasion, Messaging, and Messengers: How the Death Penalty Abolition Movement Succeeded in New Jersey,” Humanity and Society 38, no. 4 (2014), 443-67.

Jacobs, David, and Stephanie L. Kent, “The Determinants of Executions Since 1951: How Politics, Protests, Public Opinion, and Social Divisions Shape Capital Punishment,” Social Problems 54, no. 3 (2007), 297-318.

Kim, Dongwook, “International Non-Governmental Organizations and the Abolition of the Death Penalty,” European Journal of International Relations 22, no. 3 (2016), 596-621.

Kirchmeier, Jeffrey L., “Another Place Beyond Here: The Death Penalty Moratorium Movement in the United States,” University of Colorado Law Review 73, no. 1 (2002) 1-116.

Kirchmeier, Jeffrey L., Imprisoned by the Past: Warren McCleskey, Race, and the American Death Penalty (New York: Oxford University Press, 2015).

Lain, Corinna Barrett, “Furman Fundamentals,” Washington Law Review 82, no. 1 (2007), 1-74.

Lowe, Marnie, “Resonance, Radicalism, and the Death Penalty: A Framing Analysis of the Anti-Death Penalty Movement, 1965-2014” (April 2018), https://escholarship.org/content/qt9sg5t66n/qt9sg5t66n.pdf.

Martin, Robert J., “Killing Capital Punishment in New Jersey: The First State in Modern History to Repeal Its Death Penalty Statute,” University of Toledo Law Review 41 (2009), 485.

McGann, Anthony, and Wayne Sandholtz, “Patterns of Death Penalty Abolition, 1960–2005: Domestic and International Factors,” International Studies Quarterly 56, no. 2 (2012), 275-89.

McLaughlin, Jolie, “The Price of Justice: Interest-Convergence, Cost, and the Anti-Death Penalty Movement,” Northwestern University Law Review 108, no. 2 (2013), 675-710.

Muller, Eric L., “The Legal Defense Fund’s Capital Punishment Campaign: The Distorting Influence of Death,” Yale Law and Policy Review 4, no. 1 (1985), 158-87.

Oshinsky, David M., Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America (Lawrence, KS: University Press of Kansas, 2010).

Smith, Stephen F., “The Supreme Court and the Politics of Death,” Virginia Law Review 94, no. 2 (April 2008), 283-383.

Steiker, Carol S., and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment (Cambridge, MA: Belknap Press, 2016).

Steiker, Carol S., and Jordan M. Steiker, “Lessons for Law Reform from the American Experiment with Capital Punishment,” Southern California Law Review 87 (2013-14), 733-84.

Steiker, Carol S., and Jordan M. Steiker, “Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment,” Harvard Law Review 109, no. 2 (December 1995) 355-438.

Warden, Rob, “How and Why Illinois Abolished the Death Penalty,” Law and Inequality 30 (2012), 245-86.

Witwicki, Kelly, “Social Movement Lessons From the British Antislavery Movement: Focused on Applications to the Movement Against Animal Farming” (December 2017), https://www.sentienceinstitute.org/british-antislavery.

Zimring, Franklin E., and Gordon Hawkins, Capital Punishment and the American Agenda (New York: Cambridge University Press, 1986).