Fewer and fewer crimes are punishable by death even in countries where execution is legal, and crimes that are widely considered to be extremely serious, such as murder, often lead to prison sentences rather than capital punishment. In 1991, offenses under the laws of over ninety countries carried a penalty of death. In eighty-five, execution was illegal or had ceased to be imposed. These included virtually all of the nations of western Europe, as well as Canada, Australia, Hungary, and Czechoslovakia. In the United States, in addition to military and federal jurisdictions, thirty-six states impose the death penalty. Not all of these states do so regularly, however; and in those where capital punishment has become routine, it is sometimes a relatively new development. From 1967 to 1977 there were no executions in the United States; between 1977 and 1992, there were 190, and over 2,500 people in 34 states were on death row. In a few countries in which the death penalty was still used in the 1980s—Brazil, Argentina, and Nepal—it had been reintroduced (in Brazil and Argentina by military governments) after a long period of abolition.
The reintroduction of capital punishment after centuries of decline has once again raised the question of the morality of execution. No code of law now prescribes death for the theft of fruit or salad, as Draco's code did in ancient Athens; and boiling to death is no longer a recognized punishment for murder by poisoning, as it was in England under the Tudors and Stuarts. Can a principle that explains why these developments are good also explain why it is good that some codes of law no longer prescribe death as punishment for murder? Or can a principle that condemns the death penalty for some crimes also support its imposition for others? These are live questions, for one of the arguments commonly presented against the death penalty turns on the suggestion that retaining it or reintroducing it is a case of being morally behind the times. According to this argument, standards of humane punishment have now risen to a point where killing a human being—even one who is guilty of a terrible crime—can only be understood as cruel, and therefore immoral. Such an argument is sometimes used to counter another that is perhaps even more familiar: that the death penalty is justified because of its power to deter people from violent crime. The argument from deterrence will be examined later.
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