February 06, 2018

U.S. stands alone in North America on death penalty

Canada, Mexico have long abolished capital punishment as U.S. still grapples with issue

No surprise. When you compare how the death penalty is imposed among North American countries, the United States is the leader in executions.

But a closer look at the history and evolution of capital punishment in Canada, Mexico and the United States reveals some interesting realities.

These differences were examined at the 2018 ABA Midyear Meeting in Vancouver during a program sponsored by the Criminal Justice Section titled, “A North American Perspective on the Death Penalty: The American, Mexican and Canadian Experiences.”

Cassandra Stubbs, the director of the ACLU Capital Punishment Project, presented a detailed look at how both Mexico and Canada did away with capital punishment and how the U.S., after a brief abolition of the death penalty in the 1970s, still uses the practice, albeit much less frequently.

Historically, the death penalty was used much less in Mexico. Between 1908 and 1961, Mexico had 11 executions. Canada put to death 710 people between 1542 and 1976. In the U.S. between 1608 and 1972, 14,489 executions were carried out. During 1931, a peak year for executions, the U.S. had 153 while Canada performed 22 and Mexico none. However, the rate of Canadian executions was greater (2.09 per million residents versus 1.23 per million in the U.S.).

From the mid-20th century, capital punishment was still officially on the books in Canada and Mexico, although neither country carried out death sentences. In the U.S., executions are on the decline. In 2016, there were 2,902 people on death row, according to the Death Penalty Information Center. But there were only 20 executions carried out in the U.S. that year. There were 23 executions in 2017. The diminished use of the death penalty may be the harbinger of the abolition of capital punishment in the U.S.

In Mexico, a predominantly Catholic country with a long history of abolitionism, public opinion has been against the death penalty for a long time. The Mexican constitution was officially amended to abolish capital punishment in 2005. In Canada, the death penalty was formally struck from the criminal code in 1976, when the House of Commons passed a bill doing away with it.

In the U.S., it appears that if the death penalty is abolished officially, it will come through the Supreme Court. The death penalty was outlawed in the U.S. for a brief period after the 1972 Supreme Court decision in Furman v. Georgia. But it was reinstated after the 1976 decision in Gregg v. Georgia and it has been legal ever since.

But a 2015 Supreme Court decision in Glossip v. Gross, where, in a 5–4 decision, the Court held that lethal injections using the drug midazolam did not constitute cruel and unusual punishment, may be a turning point. In his dissent, Justice Stephen Breyer argued that the death penalty was unconstitutional because it was unreliable, arbitrary, suffered from excessive delays and had, in effect, been abandoned by most of the country.

There have been many studies highlighting the arbitrary and discriminatory nature of capital punishment in the U.S. While making up about 13 percent of the population, African-Americans account for 41 percent of death row inmates. The arbitrary nature is also geographic. Most executions have occurred in the South, Texas and Oklahoma. In fact, 31 percent of death sentences were handed down in just three counties — Maricopa County, Ariz.; Clark County, Nev.; and Riverside County, Calif.

The large number of death row exonerations (159 since 1973 while executing 1,465 people) speaks to its unreliable nature. “We have seen a major shift in terms of international and national opinions about the death penalty as people have begun to realize that we exonerate an enormous number of people on death row,” the ACLU’s Stubbs said. “We are getting it wrong. We are sentencing people to death, when they are innocent, at a very high rate.”

Delays in the average time it takes to carry out a death sentence have increased from two years in 1960 to nearly 18 years today. And while 31 states still have the death penalty on the books, only eight states have carried out executions in the past two years, bolstering the case of isolation. Death sentences also are declining, from a peak of 315 in 1996 to 39 in 2017.

Being out of step with both our northern and southern neighbors on the death penalty has caused issues in the past few decades. Canada has refused extradition of people to the United States without assurances that the defendant will not face capital punishment. Mexico, which has 54 of its citizens currently on U.S. death rows, filed a complaint against the United States in 2003 at the International Court of Justice, alleging that the U.S. had violated the Vienna Convention by not allowing the Mexican citizens sentenced to death to get consular assistance.

As the United States still grapples with the death penalty, it has become more of an outlier both in its hemisphere and in the world. There are still 58 countries in the world where capital punishment is legal. The U.S. is the only Group of Seven country that has it. While data on executions from countries like China and North Korea is difficult to gather, Amnesty International puts the U.S. behind only China, Iran, Saudi Arabia and Iraq in the number of executions over the past 10 years.

While Canada and Mexico took different paths to abolishing capital punishment, the United States seems to be moving toward it through the courts.

“The death penalty will die with a whimper,” Stubbs concluded. “States will realize it is too expensive and too failed and will just stop using it.”