Historical Background
The history of capital punishment in the United States reflects a cycle of reform, reinstatement, and continued controversy. In 1972, the Supreme Court’s decision in Furman v. Georgia temporarily halted executions nationwide, finding that death penalty statutes were applied in arbitrary and capricious ways. Just four years later, in Gregg v. Georgia the Supreme Court reinstated the death penalty. This decision upheld new death penalty statutes that aimed to address the arbitrariness concerns raised in Furman by providing revised sentencing guidelines and procedures for capital cases. These revised guidelines typically included a bifurcated trial process (separate guilt and sentencing phases) and required the identification of aggravating circumstances before a death sentence could be imposed.
Since then, abolition efforts have proceeded along two main paths: statutory repeal by state legislatures and judicial decisions striking down death penalty schemes. A small number of jurisdictions, such as Michigan and Puerto Rico, have gone further by embedding abolition directly into their constitutions; a step that offers stronger, more lasting protection.
Current Context and Trends
As reported by the State Court Report in “States Grapple with the Death Penalty,” the current landscape is marked by both progress and setbacks. Several states have invalidated their death penalty statutes due to findings of racial bias, arbitrariness, or other constitutional defects. Washington, for example, struck down its capital punishment system in 2018 on equal protection grounds.
Yet executions persist in other states, and 2025 saw an uptick in the number carried out compared to recent years. Ongoing litigation continues to raise concerns about wrongful convictions, procedural fairness, and the disproportionate impact of the death penalty on communities of color. Some legislatures have even pursued measures to strengthen or expand capital punishment, illustrating how quickly the legal tide can turn.
This instability underscores a central problem: statutory abolition or judicial rulings can be reversed by new legislation or shifting court majorities. Without deeper constitutional protections, no abolition is truly secure.
Sarat’s Argument for Constitutional Abolition
Against this backdrop, Professor Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, makes a compelling case for constitutional reform in his August 6, 2025 essay for VERDICT: Legal Analysis and Commentary from Justia, titled “It Is Not Enough for States to Abolish the Death Penalty by Statute or Judicial Decree; They Must Make It Unconstitutional.”
Sarat argues that abolishing the death penalty through ordinary legislation or court decision leaves states vulnerable to political swings and public opinion shifts. Laws can be repealed, and judicial precedents overturned. By contrast, constitutional amendments require far more rigorous processes to undo, creating a more durable safeguard against reinstatement.
He further contends that constitutional abolition is more than a procedural safeguard, it is a moral declaration. Enshrining the ban in a state’s highest law signals a deep and enduring commitment to justice, human dignity, and the rejection of irreversible punishment.
Conclusion
The recent trends documented by State Court Report show that progress toward abolition is fragile. Political shifts, changing court compositions, and high-profile crimes can reignite calls for capital punishment. Professor Sarat’s argument provides a roadmap for ensuring that once a state chooses to reject the death penalty, that choice endures.
If the goal is a lasting end to capital punishment, states must move beyond repeal by statute or court decision. They must make abolition a constitutional principle, one that cannot be undone by the next election cycle, but instead stands as a permanent testament to the state’s commitment to justice.