Dead or alive? Reassessing the health of the death penalty and the prospects of global abolition

Published date01 May 2024
DOIhttp://doi.org/10.1177/13624806231187376
AuthorRon Dudai
Date01 May 2024
Subject MatterArticles
Dead or alive? Reassessing the
health of the death penalty and
the prospects of global
abolition
Ron Dudai
Ben Gurion University, Israel
Abstract
There is a growing position among human rights advocates, academics and UN off‌icials,
predicting the death of the death penalty, and forecasting that it will completely dis-
appear soon. This article questions and problematizes this prediction, exploring the
assumptions, premises and gaps that underpin the optimistic outlook. Based on analysis
of abolitionist discourse, three fallacies are identif‌ied and analyzed: a progressive fallacy,
assuming the death penalty is a barbaric anachronism in the civilizedmodern world
and displaying a teleological belief in its demise; a classif‌icatory fallacy, entailing
def‌ining-down the prevalence of the death penalty through the category of de-facto
abolition; and a functional fallacy, assuming that repudiating the death penalty as a
crime-f‌ighting tool will cause its demise, overlooking its transformation into an institu-
tion serving political-symbolic functions. In concluding, I suggest viewing the global death
penalty as bifurcated: dying as an ordinary law-enforcement tool, but relatively healthy
as an extraordinary political symbol.
Keywords
abolition, death penalty, human rights, Israel, penal reform
The death penalty, for most of history a commonplace part of political culture, has clearly
been in decline in recent decades. There are fewer executions and death sentences
globally, and fewer countries have the death penalty in their statutes; as the most
Corresponding author:
Ron Dudai, Department of Sociology and Anthropology, Ben-Gurion University, Beer Sheva 8410501, Israel.
Email: dudair@bgu.ac.il
Article
Theoretical Criminology
2024, Vol. 28(2) 139156
© The Author(s) 2023
Article reuse guidelines:
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DOI: 10.1177/13624806231187376
journals.sagepub.com/home/tcr
authoritative global survey describes, since the early 1990s there has been a revolution
in the discourse on and practice of capital punishment(Hood and Hoyle, 2015: 16). Yet
how should the current status of the death penalty be interpreted?
For manyhuman rights advocates,academics,UN off‌icials and othersthe current global
position heralds the death of the death penalty(Amnesty International, 2011). The conf‌ident
prediction that the death penalty will soon completely disappear has become common, expressed
by statements such as Around the world the death penalty is dying out(The Death Penalty
Project, 2018). Leading academics explain that the death penalty is dying(Sarat and
Martschukat, 2011), reaching the End of Its Rope(Garrett, 2017); Radelet (2009: 19) pre-
dicted, in 2009, that [by] 2032, the only scholars writing about the death penalty in
Americawill be historians. A leading human rights lawyer defending in capital cases suggested
that The death penalty is in its death throes(Stafford-Smith, 2015). Two UN special rappor-
teurs argued that we appear to be witnessing the last days of the death penalty(Heyns and
Mendez, 2012); one of them predicting, in 2012, the death penalty, for all practical purposes,
to be a thing of the past by 2026(UN, 2012). The ACLU (2012) observes an unmistakable
worldwide trend [] toward the complete abolition of capital punishment. William Schabas
(2015: 13), perhaps the most prominent international law scholar of the death penalty, and a
top UN adviser, argues that: It seems that nothing can stop continued progress towards universal
abolition,andthatthe day when abolition of the death penalty becomes a universal norm []
is undeniably in the foreseeable future.
1
This stance is not the only one voiced in abolitionist
circles,
2
but it seems to become the most common, and in any case is prominent enough in
both academic and activist discourses to merit attention.
This optimistic outlook is remarkable also as it stands out in relation to other relevant
trends. In the human rights world, recent years have seen a general mood of disillusionment
and despair, marked by proclamations on The Endtimes of Human Rights(Hopgood,
2013). Criminologists also tend to be skepticalinrelationtotheprospectsofpenal
reforms (Cohen, 1985) and have been chided for depicting problems as intractable and
lacking optimism (Loader and Sparks, 2014: 175; see also Zedner, 2002). More broadly,
the current dominant disposition in political culture is of declinism, looking favorably at
the past and predicting that the future will be worse than the present (Newburn and Ward,
2022: 3). The conf‌ident predictions of the imminent death of the death penalty are thus curi-
ously out of tune with other outlooks in the f‌ields from which they emanate.
If the death penalty is indeed to completely disappear from Earth in the near future,
that would be one of the most striking developments in the history of punishment and
of human rights. However, in this article I aim to question and problematize that predic-
tion. I will suggest, a la Mark Twain, that reports of the death of the death penalty have
been highly exaggerated. Yet rather than engaging in counter-predictionsalthough that
would be part of the analysismy main aim is to analyze the causes of the outlook
sketched above: to identify the assumptions, premises and gaps in the perception and con-
struction of the death penalty as inevitably moving toward full abolition; treating the opti-
mistic position more as a thing to be explained than as a prediction to be contradicted.
In the next three sections, based on analysis of relevant abolitionist discourse, I identify
and analyze three fallacies that, I argue, shape and underpin the optimistic predictions. The
f‌irst is a progressive fallacy, where perceptions of the death penalty express a teleological
belief that its future end is a foregone outcome, and that its current presence is a barbaric
140 Theoretical Criminology 28(2)

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