It remains one of the most decisive political turns in American history. In the 1972 case of Furman v. Georgia, the US Supreme Court struck down all existing death penalties, while leaving the door open to the possibility that better drafted statutes might be upheld. By the time the Court considered a host of new statutes in the 1976 case of Gregg v. Georgia, thirty five states had re-enacted the death penalty and scores of individuals were already on death row (following years of actual death sentences declining). As I argue in Governing through Crime, this come back represented the empowerment of a whole new constellation of political power at the state level, anchored around governors, attorney generals, and prosecutors.
Now, for the first time since this new constellation was formed more than thirty years ago, a state is moving toward repealing its death penalty. According to the reporting of Jeremy W. Peters in the NYTimes, a bill that would do just that has come out of a Senate Committee and is on track to be considered by both houses. The reasons are not hard to understand. Like other states outside the death belt, New Jersey has found capital punishment to be very expensive and very difficult to actually execute (in fact no one has yet been executed under the revived death penalty law).
Yet even where the death penalty is moribund, renouncing the right to kill involves a huge modification of political authority (and the opportunities for politicians to act in the charged space of power it creates). Look for politicians on the margins to cease this opportunity to occupy the center of voter fears by rushing to defend the death penalty (which is never more productive politically than when under attack).