The Republican Party has certainly changed in the age of Donald Trump. But one grim constant in GOP presidential politics is the primacy of the death penalty.
The difference is that the death penalty has become more of an abstraction in the past two decades. In 2020, for example, just 18 people were sentenced to death in the United States, despite years of Republican dominance of state-level politics. That’s down from 114 in 2010 and 223 in 2000.
Not only are prosecutors more reluctant to seek the death penalty, but jurors might be more reluctant to impose it. Last month the Biden administration lost the only death penalty case it has tried so far, as New York jurors opted for life imprisonment for a man who killed eight in a 2017 terrorist truck attack. In October, a Florida jury declined to recommend death for the perpetrator of the 2018 Parkland school massacre. Florida has executed just four capital prisoners since DeSantis took office.
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Trump and DeSantis both want more executions. “You execute a drug dealer, and you’ll save 500 lives,” Trump claimed in a speech last year. On Thursday, DeSantis signed an unusual law that would allow a defendant eligible for the death penalty to be executed even if only eight out of 12 jurors agree that death is warranted, scrapping the unanimity requirement in place in most death-penalty states.
The political power of the death penalty, at least for Republican voters, persists notwithstanding the increasing obsolescence of actual executions. Why? In the 2010 book “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” New York University sociologist David Garland argued that the purpose of the death penalty in Western societies has changed over time.
In the early-modern period — roughly 1400 to 1700 — the death penalty was a tool of state-building. The rise of dramatic and violent public executions, especially for enemies of the state, was designed to help Europe’s monarchs establish their dominion in a world of shifting political boundaries and sources of authority.
In the modern period — from the 19th century into the 20th century — the Western death penalty took on the more utilitarian purpose of controlling crime. It was increasingly uniform and bureaucratic. Consistent with the developing science of criminal justice, executions were a method the state used to keep the peace.
Garland calls the third iteration of the Western death penalty — the one that exists in the United States today — “the late-modern mode.” It retains superficial connections to earlier generations of the death penalty but is not primarily about crime or state power. After all, progressives who want a more activist state tend to oppose capital punishment.
And the death penalty is too slow — the average prisoner on death row in 2020 had been there for 19 years — and too vanishingly infrequent in relation to the 26,000 annual U.S. homicides to have much of a deterrent effect. To the extent that there is a crime-control effect, it could probably be achieved at much lower cost to the government with other tools, such as more effective policing. (Death-penalty cases draw massive prosecutorial and judicial resources.)
So what’s left? “The system of capital punishment that exists in America today is primarily a communication system,” Garland argued. “It is about mounting campaigns, taking polls, passing laws, bringing charges, bargaining pleas, imposing sentences, and rehearing cases. It is about threats rather than deeds, anticipated deaths rather than actual executions. What gets performed, for the most part, is discourse and debate.”
The purpose of the death penalty, in other words, is no longer protecting the state or the public as such. It’s to be a source of material for politicians, activists, journalists, filmmakers and others. If democracy is a performance, drama and emotion drive engagement. While the death penalty costs taxpayers millions in legal expenses, it also generates millions in cultural and political output. The continued decline in executions in the 13 years since Garland’s book only strengthens his argument: “From the point of view of the system, the discreet violence of the execution is a necessary underpinning, but not the thing itself.”
Of course, Trump and DeSantis’s death-penalty emphases aren’t purely performative. The vast majority of death sentences are imposed by state governments, but the Trump administration oversaw 13 federal executions in 2020 and 2021 after a 17-year pause. DeSantis’s non-unanimous jury legislation will meaningfully lower the bar for prosecutors seeking death sentences in Florida (although the fact that he felt it was necessary is a testament to jurors’ growing reservations).
But the GOP’s death-penalty hype doesn’t break with the “late-modern mode” of capital punishment. Instead, it’s a perfect illustration of it. As the death penalty fades, calls for executions may become an increasingly valuable commodity for political entrepreneurs.
Opponents of the death penalty — and I count myself as one of them — find this mildly sickening. But what we should be worried about is not the return of death as an instrument of authoritarian rule, or the routine execution of criminals that has sometimes been the Western norm. No, what we should worry about is the increasing frivolousness of our late-modern politics, and the ease with which it cheapens human life.