| Delaware, the second smallest state in the Union, is hardly thought of as a hotbed of death penalty activity, though for years it had the highest per capita execution rate in the United States. In 2016, it took a step away from that legacy when its state supreme court ruled the death penalty unconstitutional. It was abolished legislatively last year. . |
| But it is now on the cusp of doing something truly remarkable. In its 2025 session, the state legislature voted to add a provision to its constitution that would ban the death penalty. |
| It needs to vote again in its next session to finalize that decision. If it does so, as expected, it will join Michigan and Puerto Rico as the only jurisdictions that have an explicit constitutional bar against using capital punishment. Other states have ended the death penalty by statute or judicial decision. |
| Abolitionists in those states and elsewhere should learn from what is happening in Delaware. They should push for more than statutory bans on capital punishment, which can be undone when death penalty supporters take power, or judicial decisions, which can be reversed when the personnel of a court change. |
| Abolitionists should play constitutional politics and work to add language prohibiting capital punishment to state constitutions. |
| A look at American history shows that statutory abolition or even abolition by referendum is by no means perfect. Delaware’s own history is a reminder of that fact. |
| As Delaware Public Media notes, “After several legislative attempts to abolish the death penalty in the 1950s, a bill was passed in 1957 and signed by Governor J. Caleb Boggs, making Delaware, at that time, the second state to abolish the death penalty. The death penalty was restored in 1961 when lawmakers overrode a veto from Governor Elbert Carvel to enact a bill to reestablish it.” |
| Delaware is not the only state with this on-again, off-again death penalty history. It has been seen in different parts of the country and at different points in time. |
| Take Oregon as an example. |
| Voters in the Beaver State abolished capital punishment in a 1914 referendum, with the support of the state’s progressive governor Oswald West. They brought it back six years later. |
| History repeated itself in 1964. That year, Oregon’s electorate repealed the state’s death penalty statute. Fourteen years later, they reinstated it. |
| Arizona followed a similar path. In 1916, an initiative measure ended the death penalty for first-degree murderers. But the abolitionist victory again was short-lived. |
| Two years later, sixty-five percent of Arizona voters supported a ballot measure to put capital punishment back on the books. And after the United States Supreme Court’s Furman v. Georgia decision invalidated its death penalty statute, Arizona quickly revised the law to conform to the new requirements. |
| Nebraska’s unicameral legislature abolished capital punishment in that state in May 2015, when it overrode a gubernatorial veto of the bill it had passed. But abolitionists barely had time to celebrate. |
| The death penalty was brought back by the voters in November 2016. |
| These examples should suffice to show how easily ending the death penalty by statute or ballot question can be undone. That is why it makes sense for opponents of state killing to add state constitutional amendments to their arsenal. |
| That does not mean that they could never be revived. But adding a prohibition to the constitution makes doing so much more difficult. |
| In 1952, Puerto Rico became the first jurisdiction to succeed in making the death penalty not only illegal, but unconstitutional. It did so despite the fact that the island had abolished the punishment legislatively in 1929. |
| The Puerto Rican constitution, adopted more than seventy years ago, contains the following language: “The right to life, liberty, and the enjoyment of property is recognized as a fundamental right of man. The death penalty shall not exist.” |
| Ten years after Puerto Rico, a constitutional convention in Michigan, “the first English-speaking territory in the world to abolish capital punishment in 1847,” approved a proposal “to abolish the death penalty for all crimes in Michigan by a 108 to 3 vote.” |
| At the time, supporters of that proposal argued that “it is both fitting and opportune for Michigan to step forward in the tradition which we began over 115 years ago and that the adoption of this provision would be a significant contribution to the concept of civilized justice which all of us seek to serve.” |
| The language of the constitutional amendment was simple but direct: ”No law shall be enacted providing for the penalty of death.” It was added to the state’s 1963 constitution. |
| Since then, several attempts to put a repeal of that language on the Michigan ballot have failed. |
| Yet constitutional politics do not always lead in a single direction. A 1982 amendment to the Constitution of Massachusetts forbids infliction of “cruel or unusual punishments.” |
| But the 1982 amendment goes on to say that “No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death.” |
| This brings us back to Delaware. |
| That state has its own long and complex death penalty story. It first put someone to death, long before the American Revolution, when in 1662 it hanged someone for attempted murder. Almost seventy years later, it burned Catherine Bevan alive for murdering her husband. |
| In 1996, Delaware racked up another dubious distinction when it carried out the last legal execution by hanging in this country. |
| Last year, as PBS reports, Governor John Carney signed into law a bill that “eliminated the death penalty and instructed that any adult convicted of first–degree murder was to be sentenced to life imprisonment without the possibility of parole.” But as its own history and the experience of other states show, “future General Assemblies could pass legislation reviving the practice.” |
| One of the constitutional amendment’s chief sponsors noted that possibility. Under Delaware law, if the amendment makes it through the legislature a second time, it is added to the state constitution without needing either gubernatorial approval or a public vote. Neither ordinary law nor judicial decisions could bring capital punishment back to Delaware. |
| A constitutional amendment would not only make the revival of the death penalty much less likely, but it would make a strong moral and political statement. |
| Another proponent of the amendment observed, “After more than 50 years of an on-again, off-again relationship with the death penalty, I think that what history has taught us is that this is an experiment in constitutionality that we no longer can afford as a state.” |
| In the end, moving abolitionist efforts to the constitutional level is about more than achieving a tactical goal. It is the most powerful and important way that the citizens of any state can say that “there is simply no place [among them] for a punishment as outdated and inhumane as the death penalty.” |
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