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

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 disappear 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 “civilized” modern 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 institution 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.

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 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 many—human rights advocates, academics, UN officials and others—the 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) predicted, in 2009, that “[by] 2032, the only scholars writing about ‘the death penalty in America’ will 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 rapporteurs 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”, and that “the 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 skeptical in relation to the prospects of penal 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 curiously 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 prediction. 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-predictions—although that would be part of the analysis—my main aim is to analyze the causes of the outlook sketched above: to identify the assumptions, premises and gaps in the perception and construction of the death penalty as inevitably moving toward full abolition; treating the optimistic 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 anachronism in the “civilized” modern world—both, as will be elaborated, highly questionable assumptions. The second section examines a classificatory fallacy, arguing that the common practice of classifying states with death penalty laws as “abolitionist” if they do not execute for 10 years serves to artificially define-down the prevalence of the death penalty in the contemporary world, thus making its imminent demise appear more plausible. The third section addresses a functional fallacy: the assumption that repudiating the death penalty's function as a crime-fighting tool is sufficient to bring about its end, which overlooks its transformation into a symbolic institution serving political and cultural functions. In the conclusion, I suggest that it can be productive to view the global death penalty as bifurcated: it may indeed be dying as an ordinary law-enforcement tool, integrated in the criminal justice system, but as an extraordinary political symbol it remains relatively healthy.

In addition to contributing to the literature on the death penalty, this article seeks to contribute more broadly to recent discussions of the dynamics of penal change, especially the concern with observing and conceptualizing how seemingly discredited “old” penal practices can evolve into new penal configurations (e.g. Goodman et al., 2017; Rubin, 2016). Given the focus on temporalities in the construction of the trajectory of the death penalty, the article is also relevant to the emerging perspective labelled as “historical criminology” (Channing et al., 2023; Churchill et al., 2022), which examines continuity and change in penal practices while thinking with and through time—past, present and future. Finally, the analysis of practices of human rights actors involved in anti-death penalty work can also contribute to the research perspective of “human rights practice” and its goals of uncovering the effects of choices and praxis in human rights advocacy (Dudai, 2019).

Two clarifications are due before proceeding. First, the question at stake is not whether the death penalty has been dramatically contracting; this is undoubtedly the case. But the ambition of abolitionists is not reduction in scale but complete annihilation of the death penalty, seeking for it “to be eradicated from the face of the earth” (Girling, 2005: 114), and it is the confidence that this will be achieved soon that merits skepticism. Second, I fully share the normative position that the death penalty should be fully eliminated, but not the prediction that it soon will; as Hobsbawm (1981: 6) wrote, we must be “careful to distinguish predictions based on analysis from those based on desire”, given that ideological “temptations” are often “the major obstacle in the forecaster's way”. Indeed, the concern here is that the optimistic scenario can be analytically unhelpful and misdirect abolitionist energies to a degree that it becomes what Merton (1948: 196) termed “self-destroying prophecy”: predictions that alter behavior and affect the course of events, so the predictions fail to be borne out. ³ In other words, assuming that the future trajectory of the death penalty is a Chronicle of a Death Foretold might actually contribute to prolonging its life, by leading to misdiagnosing its current status and misdirecting advocacy efforts.

Progressive fallacy: “It is just a matter of time before the death penalty is consigned to the history books”

The position predicting the imminent death of the death penalty is based on placing the present in an historical trajectory that moves inevitably toward abolition. This is based on two assumptions: that current trends are irreversible; and that they will continue to constantly move, at the same pace, toward abolition. These assumptions express a fallacy of assuming progress is predestined.

This approach is hardly unique to the discourse on the death penalty. Many of the predictions of the demise of the death penalty reflect what Sewell (2005) termed as “teleological temporality”: a belief in history as the unidirectional working out of a logic of progress, with predictable forces leading to a future state. Relatedly, this type of advocacy and commentary on the death penalty displays what Hirschman (1991: 154–159) defined as “progressive rhetoric”: a confident assertion that reforms are bound to succeed, since “history is on our side” and the world is moving irrevocably in the advocated direction. As Hirschman shows, this rhetoric, while inspiring, is often based on irrational and unsubstantiated assumptions. ⁴ In the relevant discourse on the death penalty, progressive rhetoric and teleological temporality serve as a framing (Benford and Snow, 2000) device, through which events are understood and presented: each positive development confirms the trajectory of the “road to abolition” (Ogletree and Sarat, 2009), while others are seen as mere “setbacks” on the path (Dudai, 2023a).

Several tropes express and underpin the teleological tendency. One is the common practice of drawing an analogy between the movement to abolish the death penalty and the movement for the abolition of slavery, thus assuming that the penalty's eventual demise is inevitable (Meranze, 2011). For example, while asking “Will the death penalty remain alive in the twenty-first century?”, Bright (2001: 27) argued that “like slavery”, the death penalty “is a relic of another era”; Heyns and Mendez (2012), write that slavery was once a global phenomenon yet is no longer considered acceptable, and this is used to confirm their view that the death penalty will equally disappear. The implicit assertion in such statements is that all such practices will be eradicated by an historical law of progress. What is often lost is that this analogy is an aspiration, not a proof; that slavery was abolished does not actually mean that the death penalty will necessarily be abolished as well. ⁵

Another major trope is the description of the death penalty as belonging in the past, alongside other extinct practices—thus portraying its imminent demise as a foregone conclusion. As Girling (2005: 120) shows, states that use the death penalty are often presented as “locked in” the past, “caught up in time warps”. Bessler (2014: 262), asserts, for example, that “Like the whipping post and the pillory, already relegated to the discard pile of history, the death penalty is—at bottom—a vestige of a bygone era.” Amnesty International describes the death penalty as an “outmoded and barbaric form of punishment [which] belongs in the past” (Bannister, 2008: 165). Indeed, the most common descriptions in this context are the characterizations of the death penalty as “barbaric” and “anachronistic” (e.g. ACLU, 2012; Council of Europe, 2010: 13; Steiker, 2014: 221).

On the surface, such claims, which seem to be replicated without much deliberation, are appealing to those who oppose the death penalty. But it may be worth it to pose and reflect whether their premise is actually defensible. Anachronism, literally meaning “against time”, is a term used to describe an inconsistency, a mismatch between certain practices and prevailing values (de Haan, 2015). In a world marked by war crimes, police killings, political persecution and millions of avoidable COVID-19 deaths—to give just a few examples—in what sense is the death penalty truly against its time? To describe the death penalty as anachronistic means singling it out as uniquely evil, and assuming the rest of political and judicial culture is “civilized”—both questionable assertions. The UN Secretary-General Guterres, said, for example, that the death penalty is a “barbaric punishment” that “has no place in the twenty-first century” (UN News, 2017). Saying that the death penalty has no place in the present is both a moral condemnation and a prediction of its disappearance, but the basis of such claims—that the death penalty is radically incongruous in this age—remains almost always not quite spelled out. To give another example, Human Rights Watch (cited in Middle East Eye, 2022), argued, after executions by the Hamas authorities in Gaza, that the death penalty “is a barbaric practice that has no place in the modern world”. This assumption of inconsistency between the “barbaric” death penalty and the “modern world” is especially noteworthy in the context of Gaza, whose modern world has been of war crimes and humanitarian disasters. ⁶

This analysis is ‘of course’ not meant as defense of the death penalty, but rather to question the claim that it is anachronistic and so will crumble easily. The death penalty is arguably a coherent part of a contemporary landscape of violence, suffering and injustices, part of what Mbembé (2003) termed “necropolitics”: the range of policies that give the sovereign the power to determine whose lives are expendable (and of which the death penalty is only one). Indeed, where it is used, the death penalty is very much of its time, reflecting for example the punitive turn in the USA in the 1980s, authoritarianism in China, Islamic fundamentalism in Iran and so on. ⁷ And in many places where it is not used, this does not reflect any victory of progress over barbarism: the fact that Russia or Israel do not currently use the death penalty, although it is legally possible, may actually be the real anachronism, considering their other policies inflicting violence and human rights abuses.

Another trope in this rhetoric is adopting a position of looking at the present from the viewpoint of the future in which the death penalty has been abolished. Emblematic phrases such as “it is just a matter of time before the death penalty is consigned to the history books” (Amnesty International, 2019) assert a future in which the death penalty will become only a matter of the past. This rhetoric, as Jesús (2013: 224–225) observes, contains the claim “to already know that the death penalty […] is a thing of the past”; treating “the death of the death penalty [as] a fact that is already constituted as such and only waits its full realization”. In this way, the trajectory of the death penalty appears, again, as a working out of deterministic logic of history.

The stance of looking back from the future is also used as another means of condemning the present. Stafford-Smith (2015), writes, for example, that the death penalty “is not going to look civilised when we peer back from the 22nd century” and find in this claim another confirmation that “history will place us on the correct side of the argument.” Thus, while otherwise there is a common tendency to appeal to the past to condemn the present—evoking golden ages and “good old days” “as a stick to beat the present”, as Raymond Williams (2016[1973]: 16) describes—here it is the imagined future that is being used to beat the present.

As mentioned, there is no doubt that the death penalty has been substantially declining, and the remarkable progress of the anti-death penalty campaign should be celebrated. The questionable issue is the prediction that the trajectory will necessarily continue without change. Already it appears that the pace of abolition is slowing down in recent years, perhaps because much of the lowest hanging fruit has already been picked (Johnson, 2019: 336). ⁸ There are also cases of reversal: the resumption of executions in Burma in 2022, after a 30-year lull, is a notable example. Even if it is unlikely that the global death penalty will return to its levels of the early 1990s, it might have an “L-shaped recovery” or a “regression toward the mean”; ⁹ simply extrapolating from the progress already occurring to claim that it will continue until the end is analytically unjustifiable. Given that economic development, democratization and a growing role of international human rights have been identified as drivers of the global rise of abolition (Johnson, 2019), the prediction that, in a world ravaged by cost of living, climate change, authoritarian populism and wars, abolition will continue unaffected seems even more tenuous.

To be sure, it may be the case that some abolitionists adopt optimism strategically—not necessarily because they genuinely fully believe the prediction but hoping that the more that the broader public and policy-makers are told that the world is moving away from the death penalty, the more confident they will be in joining the abolitionists. Campaigners may also think that such progressive rhetoric emboldens and mobilizes activists (Prokosch, 2018). General studies of human rights organizations have shown that activists’ private sentiments can be more nuanced than their public pronouncements (Dudai, 2023b). Nevertheless, this research examines the public discourse and its implications, including unintended consequences, and argues that the progressive rhetoric needs to be reassessed, whether it is based on tactical assumptions or on debatable interpretations of trends by researchers committed to abolition. ¹⁰

One general insight emerging from social movements’ studies is that emphasizing increased gains enroute to inevitable full success can damage campaigns, by diminishing perceived urgency and need for activism (Gupta, 2009: 418). More pertinently, the progressive rhetoric is linked with analytical problems, misdiagnosing some key aspects of the contemporary death penalty, including the nature of de-facto abolitions, the rising use of the death penalty to serve political and cultural purposes, and the resulting bifurcated form of the death penalty. The next sections explore these.

Classification fallacy: “More than two thirds of the world's countries had abolished the death penalty in law or practice”

A major component of the claim that the death of the death penalty is imminent is the assertion that the vast majority of countries have abandoned it. Thus, a widely circulated phrasing is Amnesty International's finding that “more than two thirds of the world's countries had abolished the death penalty in law or practice” (Amnesty International, 2022). ¹¹ The UN presents an even more optimistic counting, stating that 167 (out of 193) states are “abolitionist in law or in practice” (ECOSOC, 2021). This statistical claim presents abolition as the predominant norm by far in the contemporary world, making death penalty states appear as a tiny minority of deviant, isolated, countries. It is easier to presume global abolition from this starting point. However, the qualifier “in law or in practice” actually indicates a specific method of classifying different modalities of death penalty and measuring its global presence—and this method has to be questioned.

The classification of social phenomena in different categories is a key aspect of social control, political activism and human rights advocacy (Cohen, 1985). The key pertinent issue is that classification is never obvious: it reflects decisions and implicit assumptions, and should be subject to critical reflection. In this section, I consider the common classification system of the world's death penalty not as a tool for analysis, as is usually the case, but as an object of analysis.

A first concern is that measuring the global presence of the death penalty by the number of states that use it—the most common statistics used by the UN and human rights organizations—is hardly an obvious choice. It skews the global picture toward a more positive finding as it counts all states alike irrespective of their population. This is crucial as the world's most heavily populated countries—China, India, the USA, Indonesia, Pakistan, as well as Nigeria or Bangladesh—retain the death penalty. If instead of counting states we would count the population living under death penalty regimes, the result would be that over two-thirds of the world's population lives in such states (Dieter, 2019: 2). ¹² This will of course paint a completely different picture than the one claimed above. ¹³

But the main concern here is the categories used in the classification system used by the UN and Amnesty International and reproduced across the world of activism and research on the death penalty. This system is built on dividing the world's nations into four categories: retentionist, where executions take place; abolitionist, where the death penalty has been abolished in law; abolitionist for ordinary crime, where it is abolished for ordinary offenses while retained for political and/or military crimes; and abolitionist in practice (or de-facto abolitionist), where the death penalty is lawful but no executions have taken place for 10 years. ¹⁴ It is the last category that enables the claim cited above and that merits attention.

There are potentially many ways to classify the world's countries according to their death penalty practices, but the system described above has become the most common, almost exclusive, way to do so. Amnesty International's classification carries significant political and moral weight (Pascoe and Bae, 2021: 994), and has “become a conceptual foundation of the worldwide abolitionist movement” (Prokosch, 2018). Classification constructs reality (Cohen, 1985); and here it has significant consequences, affecting the distribution of advocacy resources and global attention, moral praise and condemnation.

Several points can be raised in challenging the category and its use as index of progress toward full abolition. First, the 10-year without execution benchmark, after which a state is no longer classified as retentionist, is arbitrary. This is especially so given that in some countries capital crimes would be infrequent, and that capital trials sometimes take more than a decade. Indeed, when the UN first used an equivalent category in a 1975 survey, it was based on a benchmark of 40-year without executions (Hood, 2021).

Second, countries can sentence people to death and still be classified as “de-facto abolitionist”. In fact, a majority of countries classified as such by the UN in 2018 have imposed death sentences in the preceding decade (Hood, 2021). Some “de-facto abolitionist” states sentence people to death regularly, and some have large populations of death row inmates. The suffering of people condemned to death—who can never be certain that they will not be executed, who can languish under a death row regime and who are often permanently stigmatized and traumatized by the sentence even if later commuted—makes the classification of such countries as belonging in the abolitionist camp questionable.

Third, there is often an assumption that states classified as de-facto abolitionist inevitably progress to full abolition (Schabas, 2019: 227). Yet there are many cases of states resuming executions after a 10-year lull, following a change of government or policy, including among others Bahrain, Chad, Guinea, Qatar, St Kitts and Nevis (Pascoe and Bae, 2021: 994), or the 2022 Burma example cited above. ¹⁵ Where the death penalty remains on the books it is relatively easy to reactivate it; “the law hath not been dead, though it has slept” declares Angelo in Shakespeare's Measure for Measure, justifying the resumption of a long-unused death penalty law. When states fully abolish the death penalty by law, on the other hand, a return of executions is conceivable but much harder and rarer: that is another reason why grouping these two types of states under the same “abolitionist” camp can be misleading. ¹⁶

In addition, even without return to executions, a de-facto abolitionist status is not in fact a guarantee that the state will swiftly move to formally abolish the death penalty. It can actually become entrenched even without regular executions (Dudai, 2023a). Some countries classed as abolitionist de facto appear to be set against full abolition, and it may be that the possibility of taking the final step of full abolition diminishes over time (Hood, 2021).

Viewed from the perspective of progressive rhetoric, it is tempting to treat states with death penalty laws that do not execute as belonging firmly in the family of abolitionists—but this can distort the assessment of the worldwide health of the death penalty. Moreover, this classification, which diminishes the importance of states considered abolitionist in practice, can be self-perpetuating. When countries are categorized as de-facto abolitionists they recede from the attention of the human rights machinery and activism, as well as of academic research (Dudai, 2023a); anti-death penalty activists at times resent the categorization of their countries as such for these reasons. But ignoring states that are not committed to permanently removing the death penalty from their laws, politics and culture is a mistake (Hood, 2021), and can hamper efforts to reach global abolition.

The classification of countries as de-facto abolitionists and the meanings drawn from this system correspond to what Garland (2001) termed, in a different context, “defining deviance down”. When governments face high levels of crime, they often respond, according to Garland (2001: 117–119), by reclassifying some behaviors (through de-criminalizing, reclassifying felonies as misdemeanors or under-enforcement) so there is an impression of less deviance. I argue that something similar happens here: the common classification system inflates the prevalence of the anti-death penalty norm and minimizes the appearance of deviance from it. By classifying states with death penalty laws and death sentences as “abolitionist”, and grouping together abolitionists in law and in practice as opposed to retentionists, the scope of the global death penalty is defined-down.

We should note that there are alternatives: states with death penalty laws that do not execute regularly could also be categorized as a sub-category of retentionists, labelled as “retentionist but abolitionist de facto” (Hood, 2021: 931) or “suspended retentionist” (Hood and Hoyle, 2009: 38); they could also be split between cases of dormant laws retained by inertia and others where there is “symbolic retention” of political significance (Dudai, 2023a). The current classification buttresses the confidence in the prediction of the death of the death penalty but is only a partial reflection of reality.

Functional fallacy: “Only a symbolic role”

Abolitionist optimism is at least partly based on arguing that the death penalty does not serve any meaningful purpose anymore, but this disregards how it can adapt to new circumstances and acquire new meanings and functions (McGowen, 2011). The heart of the issue is how to interpret and conceptualize the decline in executions. As a crime-fighting tool this makes the death penalty appears useless, and some observers reassuringly argue that “in many countries it plays only a symbolic role” (Heyns and Mendez, 2012). But this is to miss major transformations in the operation of the death penalty. Its functions often no longer depend on significant number of executions, and the decline in executions does not necessarily indicate that the health of the death penalty is deteriorating. Two developments are especially pertinent here: the growing role of the symbolic functions of the death penalty and the emergence of political crimes as a major focus for its application.

First, in many cases the death penalty has been reborn as an institution with symbolic functions. When rarely used, its contribution to law enforcement is dubious, but its retention has little to do with instrumental value for crime-control, and much with newly acquired functions “in the cultural realm” (Garland, 2010: 285); it serves mainly as a symbolic communication system, signifying public outrage, elevating the status of some crime victims over others, used as a political token by elected officials and their adversaries (Garland, 2010). Even with few or no executions, the death penalty on the books enables “penal fantasies”, which serve an important function as a political outlet, thus making full abolition much more elusive than may appear (Dudai, 2018). In many cases the death penalty becomes a textbook case of symbolic laws, rather than a law-enforcement tool: cultural performances conveying meanings, dramatizing the moral notions of the community, legitimizing authority, signifying threats to the nation (Gusfield, 1984).

The maxim that “death is different”, which has underscored efforts to restrict and abolish the death penalty, can also be evoked in understanding its ability to be transformed and survive in new guises. The death penalty is unparalleled in its ability to encourage, magnify and emotionally charge discourse about punishment (Garland, 2010), and “has played such an outsized symbolic role” in legitimizing the principle of responding to crime by state-imposed harm (Simon, 2014: 501). Its unique ability to serve as a vehicle for symbolic messages means it may endure the decline in its instrumental crime-fighting value.

A symbolic death penalty with few and even no executions may appear unquestionably better than regular executions, and for some abolitionists it may seem relatively harmless. But it is important to underline that a symbolic death penalty can be dangerous and have negative consequences: it makes a return of regular executions more likely (Hood and Hoyle, 2015); it legitimizes the principle that the state is allowed to kill (Hoyle and Lehrfreund, 2021), and may indirectly legitimize extra-judicial executions (Dudai, 2018); it also affects the criminal justice system by making life imprisonment appear relatively lenient, and providing prosecutors with the ability to use the threat of capital charges to secure plea bargains; and it magnifies the public threat perception of actions labelled as “treason” or “terrorism” when these can be capital offenses, at times leading to persecution and violence (Dudai, 2021).

The various symbolic functions of the death penalty, its political significance, and cultural salience, cannot be captured by the global surveys carried out by the UN and human rights groups that document legal statutes and count executions. As Abbott (2001) noted in general, quantitative studies that measure trends over time often overlook the fact that the meaning of the measured category also changes with time; therefore, their findings are often more limited than may appear. In this case, an impression that a smaller scale of executions indicates decline in political significance and therefore imminent abolition can be misleading, as the significance of the death penalty becomes grounded in its symbolic qualities. Moreover, small numbers can sometimes be surprisingly significant in political culture (Appadurai, 2006). As EP Thompson (1979: 10) argued, the “symbolic importance” of punishment “may have no direct correlation with quantity”, and in fact “a small quantum of terror can produce an even greater effect” (1979: 11); in some contexts the execution of one or two individuals can have “extraordinary impact upon a whole nation” (1979: 11). ¹⁷ In Israel, for example, capital laws relating to treason, terrorism and the Holocaust, have made profound effects on political culture, the state's authority and the status of Palestinians in the Occupied Territories, with (as yet) only the single execution of Adolph Eichmann in 1962 (Dudai, 2023a).

The symbolic functions of the death penalty are increasingly important also because of another, overlapping, development, which (re)places political offenses at the heart of death penalty laws and discourses. While the use of the death penalty as an ordinary law-enforcement tool recedes in its importance, its position as a bulwark against political disorder, and its justification as defending national security, become more prominent (Johnson, 2019). Fewer executions are required to maintain these functions and justify retention. Many countries in fact retain the death penalty for treason or terrorism while rarely executing, using it as “a threat to those who might consider challenging the government” (Hood and Hoyle, 2015: 159).

States have often considered the threat of political crime as a prime reason for retaining the death penalty, even when questioning its usefulness and desirability as a response to ordinary crime (Doyle and O’Callaghan, 2020; Evans, 1996). Treason, for example, has been a particularly resilient capital offense, across different periods and cultures (Dudai, 2021). The death penalty is seen as an effective tool against political dissent, as recent executions of political protestors in Iran (BBC, 2022) potently remind. Terrorism, often broadly defined, is increasingly used to justify retaining capital punishment (Pascoe and Bae, 2021) and buttressing public support for it (Johnson, 2019: 341).

Cases of terrorism and political violence that become particularly infamous often recharge support of the death penalty, as many who otherwise oppose its regular use in law enforcement find it hard to object to it in such cases. Emblematic examples include the executions of members of Aum Shinrikyo in Japan, of Timothy McVeigh in the USA or of perpetrators of the Mumbai attacks of 1993 and 2008 and the 2001 attack on Parliament in India (Johnson, 2019: 338–339). Even after abolition or a mortarium on executions, terrorism often triggers calls for the restoration of the death penalty (Seal, 2014: 148–149). Political violence—unpredictable, symbolically potent, operating beyond the usual flow of ordinary crime—thus complicates the neat predictions of the death of the death penalty.

These shifts are somewhat less relevant to some autocracies and authoritarian states, which still use the death penalty for law enforcement, in addition to its role regarding political offenses. Even in these cases, however, it appears that the belief in the deterrent power of the death penalty is receding and its political-symbolic functions become more evident. In China, the death penalty's main function has shifted from deterrence to symbolic messages aiming to legitimize the state and pacify public resentment in the face of corruption and economic inequality (Hood and Hoyle, 2015: 118). Even when the death penalty is prominently used against drug offenders—as in Southeast Asia—ordinary criminal justice and political symbolism often overlap, for example when drugs trafficking is constructed as a threat to national security and the moral order and the death penalty is used disproportionally against foreigners, who are turned into the new “other” and are scapegoated for social ills (Harry, 2023). ¹⁸

Indeed, the overlap between ordinary law enforcement and political symbolism in the contemporary death penalty is indicated by the growing targeting of non-nationals in death penalty laws and practices (Hoyle, 2019; Hoyle et al., 2023). A few illustrations: in 2015, of 14 people executed in Indonesia, just two were Indonesian nationals; in 2013 five men were hanged in Kuwait, none of whom were Kuwaiti nationals; 82% of death row inmates in the UAE are foreign nationals (Hoyle, 2019); in Saudi Arabia, one of the world's highest executing states, 43% of executions are of foreign nationals (Hoyle et al., 2023). This is partly a result of discriminatory practices, but also because “foreigners” are considered as a threat to national security and identity (Hoyle, 2019). Death penalty laws are a potent means to reassert sovereignty when it is threatened, and invoking it regularly in relation to “foreigners” but not for citizens can be a useful symbolic mechanism in this regard (Hoyle et al., 2023). The function of the death penalty here is among others to express and bolster “penal nationalism” (Barker and Smith, 2021: 1545)—a reassertion of state authority by differential penal treatment of foreign nationals—rather than to deter crime in the ordinary sense.

In short, maintaining the death penalty for non-nationals, especially in the context of “national security”—often very broadly defined—can make the death penalty much more acceptable to both governments and public. The executions of Pakistani nationals convicted of terrorism in India, or the Israeli laws mandating the death penalty for “terrorism” applying in its military courts with exclusive jurisdiction on Palestinian residents of the Occupied Territories, are among the clear examples of this tendency. ¹⁹

The inclination to look at the death penalty as a relic of the past and so to predict its demise is tied to overlooking such new and evolving functions and justifications (which may of course continue to change and evolve in the future). These changes in the functions of the death penalty can make it more enduring. First, as Garland (2010: 312) said of the American case, the death penalty “has been transformed from a penal instrument that puts people to death to a peculiar institution that puts death into discourse for political and cultural purposes”—which can make resistance to it more challenging. Second, when the death penalty becomes associated with political crimes it becomes more resilient: it is rarely applied, so less vulnerable to challenges; and it is directed at those offenders—terrorists, traitors, enemies—for which capital punishment is least controversial (Dudai, 2021; McCann and Johnson, 2009: 156–157). Notwithstanding the overall decline, in these guises the death penalty remains then in reasonable health.

Conclusions: The bifurcation of the death penalty

The discussion above aimed to demonstrate that in some respects the death penalty is in fact healthier than it may appear, even with the overall dramatic decline in its scope and application. If we reject the teleological perspective assuming the remaining cases of the death penalty as soon to be swept away by historical currents, how can we conceptualize the relation between the “revolution” rejecting the death penalty and its perseverance in many contexts?

Criminologists in fact often set to identify and explain contradictory trends in penality, most commonly trying to explain simultaneous occurrences of lenient and punitive policies and discourses (Beckett et al., 2016; Garland, 2001; O’Malley, 1999). Attempting to make sense of inconsistent trends in contemporary US criminal punishment, Seeds (2017) has recently offered the concept of “bifurcation” to characterize complex penal developments. He argues that the overall decline in incarceration rates in the USA is not an expression of a general abandonment of punitiveness, as there is also a growing number of very harsh prison sentences. There is in fact a bifurcation of thinking and practice, drawing a sharp line between nonviolent and violent offenders, whereby the former are treated increasingly more leniently while the latter are subjected to expanded penal powers. I argue that the concept of bifurcation can be a productive way to examine the global dynamic of the death penalty.

Sketched in broad strokes, the death penalty has been bifurcated: as a regular law-enforcement tool it is indeed dying, but it survives and even flourishes as an exceptional, symbolic, political institution. The answer to the “dead or alive” question may be: “both”. The entrenched and symbolic death penalty is bifurcated from the ordinary death penalty in judicial and political ways. In its subject matter there is a prominent targeting of political crimes rather than ordinary offenses. There is often a temporal bifurcation in the way it is conceived, saved for applying in times of wars and emergencies, rather than in “normal” times. The venues associated with the death penalty are at times bifurcated from the ordinary criminal justice system: military courts, and special courts. ²⁰ The condemned—real or imagined—are also often perceived as different from ordinary offenders: terrorists, enemies, soldiers, foreigners. Its functions are not crime-control but asserting political authority and cultural norms, and it is used sparingly, if at all, as its symbolic functions do not require regular executions. These trends are altogether well known to activists and scholars, but drawing them together, and positioning them in a framework of bifurcation, can assist in perceiving their importance in a more coherent manner.

The bifurcation of the death penalty has several implications. First, it means that the global dynamic of the death penalty cannot be adequately understood as one homogenous trend, a single “road to abolition”, on which speed may go up or down but all are going together in the same direction. There may have been—to stretch the metaphor—a fork on the road and some diversion of traffic into different roads. More specifically, the global death penalty system should not be considered simply on a single-metric continuum, where execution numbers are the essential, decisive, indexed. Instead, a more nuanced, multivariate, system is needed, with different metrics capturing the differentiated modes of action of the death penalty, bearing in mind that its political significance—and thus also the likelihood of its endurance—is not simply a function of the number of executions. Put differently, the quantitative decline of the death penalty has different qualitative effects on both parts of the bifurcated death penalty: it does herald the demise of the death penalty as an ordinary criminal justice tool but may strengthen the death penalty as an extraordinary politically symbolic institution.

Surveys based on a binary presentation, which treats states as either executing regularly or being “abolitionist in law or in practice”, are easy to comprehend and to compile consistently and reliably. But they are not sensitive enough to capture the wide range of ways in which the death penalty exists today. This is an important cause of the outlook claiming the death penalty's death. When a state such as Israel, where the death penalty is lawful and demands to impose it on Palestinian “terrorists” have animated political life (Dudai, 2018), is generally ignored in international discussions of the death penalty and is tucked away quietly in the “abolitionist” list, it is easy to miss the very real possibility that the death penalty will make a comeback there. ²¹

Indeed, the bifurcation also has implications for assessing the prospects and appropriate strategies of global abolition. It means that however successful the campaign against the death penalty as an ordinary crime-fighting tool may be, this may not be enough to achieve the goal of the global eradication of the death penalty. In recent years, abolitionists made great strides in delegitimizing and dismantling the death penalty as a law-enforcement technique. This has been done in many cases by using the toolkit of “new abolitionism” (Sarat, 2001), eschewing the grand moral denunciation of the death penalty as such and concentrating on its failings in practice. This approach has been successful in raising concerns about miscarriages of justice, the arbitrariness and discrimination inherent in death penalty practices, its failures in deterring crime and its high financial cost—all of these were used to discredit the death penalty to the degree that led many to argue that it will be globally abolished in the very near future (Radelet, 2009). Yet, when addressing the other part of the bifurcated death penalty—its existence as an extraordinary, symbolic institution—these abolitionist arguments may be less successful. There is a need for other arguments to target states that hold steadfastly to “de-facto abolitionist” status, which save the death penalty for extraordinary offenses, or that target foreign “terrorists”—the plight of the condemned, claims of discrimination or the questioning of deterrence, are less relevant to these situations. Ultimately, as the goal of abolitionism is a universal acceptance of the demand that the death penalty “cannot prevail in any form, even symbolically without executions” (Hood, 2021: 928), assuming that it is already dying could make abolitionists too complacent and overlook how a bifurcated death penalty requires a broader set of tools to be truly killed off.