What is the relationship between the death penalty and constitutional democracy?

The abolition of the death penalty across the West and most other democracies, means that the United States is routinely cast as the exception that proves the rule:  the death penalty is inconsistent with the humanist and enlightenment values that mark liberal democracy.

In recent years, studies by David Garland and Michael Pfeifer have called that idea into question, demonstrating that the democratic culture of the United States, specifically deference to local democracy and strong traditions of rough justice, helped keep the death penalty alive in several states. Commitment to the death penalty, in their formulations, is a logical result of the country’s embrace of the idea that criminal law should be responsive to popular opinion. In effect, it is the power of “we the people” that helps keep the death penalty alive.

That argument about residual sovereign powers raises questions about the nature of constitutional order. In the context of United States history, it is an argument that connects study of the death penalty with works that consider the nature of citizenship and the power of the State in the realm of criminal justice. But it is also an argument that reinforces the idea that there is something peculiar about constitutional democracy as practiced in the United States.

In the newest issue of Law and History Review, an article by James Donovan challenges that notion of America exceptionalism. Donovan’s article on the abolition of the death penalty in twentieth-century France builds on the work by Garland and others. Donovan’s work shows how and why popular sentiment in support of the death penalty was deferred to in 1908, when an effort to end the death penalty was defeated, but not in 1981, when the death penalty was abolished even though public opinion continued to favor it. Donovan’s work simultaneously reinforces the analysis offered by Garland and Pfeifer and, by demonstrating that in the early 1980s the French government was no longer willing to defer to popular sentiment, raises questions that future work on the intersection of criminal and constitutional law needs to address.

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