UPDATE: I was told that my second sentence, the one about Japan, implied that prisoners don’t know they are to be executed at all until the day it’s done. I was obviously unclear in what I said, so let me explain: prisoners in Japan slated for capital punishment do of course know that they will be executed well in advance, but they don’t know exactly when until the day it happens. The statement about others being informed only post-execution is correct.

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The U.S. is one of the few “advanced” nations to retain the death penalty; the other notable one is Japan. (Japan has a bizarre system: prisoners aren’t told they’re going to be hanged until the day they’re executed, and nobody else, including relatives, is informed until the sentence has been carried out. Japan has executed 67 people since 2000.)

Here’s a map from Wikipedia showing which countries use capital punishment.

Turquoise: no death penalty for any crime
Lime green: death penalty only for exceptional crimes (treason, etc.)
Tan: death penalty not used in practice; no executions for at least ten years
Red: death penalty imposed

In the U.S., capital punishment has aways been deemed Constitutionally legal, though opponents have argued that it violates the Eighth Amendment to the Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In the case of Furman vs. Georgia in 1972, the U.S. Supreme Court suspended the death penalty not because it constituted a “cruel and unusual punishment,” but because it was being applied capriciously and inconsistently. In 1977 states again began executing people after a Court decision that implicitly allowed it for cases of murder. Later decisions outlawed application of capital punishment to those deemed mentally retarded or who were under 18 at the time of their crime. The first person executed after that suspension was Gary Gilmore in Utah.

Now only 19 of 50 states in the U.S. (plus the District of Columbia) outlaw capital punishment; those are shown in green below (map from Wikipedia). All the enlightened states save New Mexico are in the North, and east of the Rockies.

You may not realize that 35 people were executed last year in the U.S. My own opposition to capital punishment has been unwavering: it doesn’t serve as a deterrent, eliminates the possibility of reversing a false conviction, is based solely on the unproductive desire of humans to exact retribution, and is more expensive and cumbersome than life in prison without parole. It’s time that my country fell in line with our peers and abolished it.

And that, curiously, is what conservative Justice Antonin Scalia signaled last week in a speech at Rhodes College reported by the American Bar Association Journal:

Justice Antonin Scalia delivered his standard defense of originalism in a speech on Tuesday that included an unusual observation about the justices’ stance on capital punishment: Scalia said he “wouldn’t be surprised” if the U.S. Supreme Court overturns the death penalty.

Scalia told students at Rhodes College he has four colleagues who believe the death penalty is unconstitutional, reports the Memphis Commercial Appeal. The Associated Press also covered the speech, but did not include Scalia’s death-penalty remarks.

In a June dissent by Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, he called for a briefing on whether the death penalty is constitutional. “I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer said in the dissent.

Now I’m not sure why Scalia said he “wouldn’t be surprised” given that only four colleagues see the death penalty as unconstitutional (it takes five to affirm that), and, as an “originalist” who believes that we should adhere to the intent and letter of the original Constitution, it’s not clear that Scalia would be that fifth vote. As the Journal added:

Scalia said in his speech that justices on the current Supreme Court are “terribly unrepresentative of our country” and noted the only justice from the South is Clarence Thomas. The other justices are from California, New York and New Jersey. “Do you really want your judges to rewrite the Constitution?” he asked.

Since capital punishment is not per se unconstitutional, this seems to signal that Scalia isn’t opposed to it. The justices that I count as ruling against capital punishement are Breyer and Ginsburg, as noted above, as well as Kagan and Sotomayor. That makes only four. Does Scalia knows something we don’t—perhaps about Justice Anthony Kennedy?

h/t: Ben Goren