Abolish the death penalty

by John Quiggin on June 29, 2018

The discussion surrounding the US Supreme Court led me to think about the death penalty, one of the limited number of issues on which Justice Kennedy was a swing vote.* In this context, that means that he supported the death penalty in general but was concerned about due process and the execution of minors. It can safely be assumed that his replacement will have no such concerns.

That’s bad. But it’s only possible because the death penalty exists. The Supreme Court can’t sentence anyone to death; all it can do is fail to save them.

The only (possibly) feasible option therefore is to change the law to abolish the death penalty.There has been some progress at the state level, but that’s not going to stop executions any time soon. The only effective response is to pass Federal legislation abolishing or restricting the death penalty. Of course, that requires Democratic control of Congress and the Presidency, but so does any action with respect to the SC.

IANAL but this discussion seems to show that it would be possible in practice. At the very least, Congress could legislate the kinds of protections Kennedy supported, and repeal the Antiterrorism and Effective Death Penalty Act of 1996

The politics of the issue look very similar to those around equal marriage. Bill Clinton used the execution of a brain damaged man to burnish his centrist bona fides, and signed the Effective Death Penalty Act in parallel with “don’t ask, don’t tell” and the Defense of Marriage Act. Since then, public opinion has shifted a lot and a substantial majority of Democratic voters oppose the death penalty. During the 2016 campaign, Hillary Clinton supported the death penalty while Bernie Sanders opposed it, but the issue wasn’t prominent (IIRC).

A strong campaign against the death penalty would probably not be a vote winner in the short term. But, given the degree of polarization on the issue, it would probably not lose many votes either. And it’s morally right.

  • As far as I can tell, the others were equal marriage (which as I’ve argued, is now settled for all practical purposes) and abortion. Kennedy voted pretty reliably for business and against unions, as in the recent Janus case.

{ 33 comments }

1

Marfrks' No1 Fan 06.29.18 at 1:03 am

“Abolish the death penalty”

How about explaining how it could be done, given political reality.
The death penalty is less popular than it was and it’s fading, slowly.
But you’re still in cloudcuckooland, and this is the best comment anyone has ever made at Crooked Timber

http://crookedtimber.org/2010/04/01/greenwald-v-kerr/#comment-309996

2

oldster 06.29.18 at 1:39 am

John, I like the way you are thinking.

We are hard-pressed on all sides, and things look grim. It’s easy to go into a defensive crouch, to lick our wounds and flinch from further action.

But you are right: we need to play the long game, and never stop playing it. Not until we win, and not after we win, either.

We need to set maximal goals, as well as celebrating small incremental victories. We need to keep saying out loud, now more than ever, what we stand for and what we will create when we have power again.

A better, kinder, more just and more equitable world.

3

Quill 06.29.18 at 3:12 am

Congress does not have the power, barring constitutional amendment, to abolish state death penalties.

4

Ben V 06.29.18 at 3:22 am

I am dubious that all but the Constitutional amendment route proposed by the author of the linked post would suffice. As someone who spent the better part of 5 years freeing a man from death row (in Mississippi), I truly wish it were easier, but the death penalty in America, along with mass incarceration, is racism manifest in the legal system. What should put an end to the death penalty is the recognition that the entire criminal justice system – capital and otherwise – is incapable of delivering judgment in which any anyone should have perpetual confidence. Lacking that, there is no moral basis for putting someone to death in reliance on such a system.

5

Orange Watch 06.29.18 at 3:46 am

Marfrks’ No1 Fan@1:

Best suggestion I’ve seen as to how it could actually be done politically would be signing and ratifying a treaty obligating the US to abolish it.

6

Name (required) 06.29.18 at 6:43 am

Do you want to see another generation of Willie Horton-style attack ads hurled against Democrats?

Because that’s how you’ll see another generation of Willie Horton-style attack ads hurled against Democrats.

7

Mark Brady 06.29.18 at 7:15 am

And then there are Conservatives Concerned About the Death Penalty.
https://conservativesconcerned.org/

8

bad Jim 06.29.18 at 7:40 am

When Harry Blackmun, no one’s idea of a liberal, said “I shall no longer tinker with the machinery of death”, he was not claiming that capital punishment was wrong, but despaired that it would be fairly imposed.

Unsurprisingly, its advocates are not discouraged by its arbitrary imposition.

9

Z 06.29.18 at 9:33 am

How about explaining how it could be done, given political reality.

That topic to me is like health care, maternity leave, climate disruption and gun control. Everybody in the world agrees that there are better ways to deal with them than the current American one (not ideal, just better). The Democratic base should make it clear that they are not going to vote for someone who doesn’t explicitly endorse one of these better ways. No need to make it the campaign issue, no need to make a big deal out of it, just make every D candidate, every single one, state calmly and explicitly that she favors maternity leave, believes climate disruption is real, important and that something should be done about it immediately, will support gun control, will campaign for the abolition of death penalty and will look for an expansion of Medicare (or similar sensible approach).

The alternative is at any rate so morally or intellectually bankrupt (or both) that I don’t see any point in pretending.

10

ph 06.29.18 at 10:25 am

So, I actually watched a couple of anti-trump protests. Perhaps I just watched the really stupid ones. I migrated after watching an anti-Peterson protest which really didn’t amount to much.

Which leads me to the OP, and comment 9. The OP is reasonable and sensible – advocate for an ideal.

The ‘Everybody in the world agrees that there are better ways to deal with them than in the current American one’ is one of the sillier claims I’ve read anywhere.

First, if even most people in America agreed on any of these issues, there’d be little need for action. I imagine a sizeable number of folks living in nations with no or few worker rights – such as China, or Cuba, would love to live in the imperfect system of the US as unworkable as it often is.

Second, Canada and the UK have abolished the death penalty – in theory. But the national governments of both nations elect to dish out death and destruction as needed – be it dropping bombs on fortunate folks in the Middle east as we pave their entry into a ‘better place.’

The single change I’d most like to see in all nations is a constitutional amendment abolishing the right to wage war. I’d be delighted if just one of the world’s western power created a law similar to that of Japan’s – which is also imperfect, but has prevented Japan from violently participating in any of the peace actions waged by France, Canada, Australia, America, Italy, etc. etc. etc. during the last seventy-odd years. Were nations banned from waging any wars, then perhaps we might seriously start using institutions such as the UN to resolve differences. Crazy, I know, but perhaps less so than ‘making every D candidate, every single one, state calmly and explicitly blah-blah-blah.’

Posing an ideal is one thing – responding to the question ‘How about explaining…political reality? with this sort of fantasy really does seem odd. Dems are in real need of policies that actually represent voter views.

Banning the death penalty is a pipe dream at this point, as much as ‘stripping voting rights from the elderly and rural voters’ just not as authoritarian and troubling.

11

Cian 06.29.18 at 12:25 pm

While I don’t disagree with any of this post, it feels too small somehow. The US justice system is broken and terrible. Most cases don’t go to jury trial. Defendants are pressured to plead guilty no matter what the facts. Poor people don’t have access to legal council. People languish in jail for years waiting to be tried. Innocent, or guilty, they still get punished. Standards of evidence are very low.

Or how about cops? Barely trained, using standards of investigation that would be laughed at in many other countries. Heavily militarized, without any of the training that an actual military receives. Heavily armed, but terrified of ordinary people and with none of the skills that could be used to routinely defuse situations (god knows the London Met are not great – but so far ahead of the US police forces that it’s depressing).

Then there are the prisons. Which are terrible, inhumane places of torture. For all the discussion of Abu Ghraib – nobody pointed out that the US has prisons that are exactly like this. That torture is part of the US prison system. Prisons are simply about punishment – there’s no attempt at rehab. And brutal awful punishment at that. Rape is taken for granted. It’s taken for granted in our pop culture that prison is a place where you can get murdered for looking at someone funny. Where prisoners are forced to join racist gangs in order to survive.

And that’s before we get to the awfulness of the civil system (forced arbitration dammit. Seriously, we have a privatized legal system that you HAVE to use).

Almost everything about the legal and justice system in the US is barbaric.

12

N. N. 06.29.18 at 5:08 pm

In the United States, the death penalty is almost abolished already. The annual number of new death sentences has dropped by 80% since the 1990s. Most death sentences today are passed in a tiny handful of outlier counties, numbering approximately 15, in the South and the West (with some of the latter being dominated by Democratic voters). They have to do with peculiarities of very local politics and especially the politics of the local prosecutor.

What will eventually stop executions is simply that new death sentences stop, and we’re almost all the way there already. Most executions today are of people who have finally exhausted their appeals after being sentenced to death in the Clinton or Bush years with their totally different political atmosphere, and who would never be sentenced to death today (which of course makes their execution more repellent morally, not less).

As the number of new death sentences continues to plummet, there will eventually be a situation where there is, say, one execution every second year (as there was in a country like France in the 1970s, or Australia in the 1960s). The most likely development is that state legislatures will then abolish the death penalty, or state supreme courts will strike it down, as an anachronistic remnant that the people themselves have already rejected de facto, by electing prosecutors who do not seek it and serving on juries that refuse to impose it.

In the United States, most anti-death-penalty activism occurs at the state level, because criminal law is a matter for the states. Talk of Congress this and Congress that is largely neither here nor there, because 499 of every 500 executions are carried out by states. As the discussion linked to points out, even a hypothetical constitutional amendment would of course have to be ratified by three-fourths of the states.

I am definitely not seeking to play down the awfulness of the death penalty. On the contrary: to me it is a moral evil unlike any other, and the one I would unhesitatingly rid the world of if I could choose just one. But there are few moral evils in the United States today where the future outlook is less grim than with the death penalty.

13

Layman 06.29.18 at 5:54 pm

Z: “The Democratic base should make it clear that they are not going to vote for someone who doesn’t explicitly endorse one of these better ways.“

I’m struggling to understand why this would be a good strategy for the Democratic base.

Assuming that (somehow, since the party isn’t a conscious thing and can’t decide these things) all Democratic candidates ticked these boxes, after the election the Dems would (best case) control the House, and (best case) have a very slim minority in the Senate.

Now what? They will be entirely unable to do any of these things, because you have to control all three veto points *and the Court* to make them happen.

The base will be annoyed, and stay home the next time because the Democrats are, they say, feckless, and full control will return to the Republicans.

And this it the best case. The worst case is that the system produces some Democratic candidates who don’t tick all these boxes (we’ll call this possibility ‘reality’) so the base doesn’t vote, and we get what we have now.

14

TM 06.29.18 at 6:18 pm

As JQ points out, a democratic majority could abolish the death penalty at any time. That this hasn’t happened in the US, as opposed to al most the entire world, should give JQ pause. The inconvenient truth is that there is sufficient popular support, probably a majority, for the cruel, revenge-based penal system that the US has adopted. It is alwazs easy and tempting to blame the elites, such as the reactionary Supreme Court, for reactionar policies. But most of these policies have strong popular support, or they wouldn’t exist. The SC is actually a moderating force on penal cruelty, it draws certain lines. These lines wouldn’t have to be drawn by a court if the people weren’t eager to see them crossed.

This inconvenient truth that reactionary policies have popular support is always overlooked by the verbal radical fraction, who blame centrist liberals for trying to get incremental improvements, knowing that the citicenry doesn’t support more radical change.

Obvious example: single payer has been proposed at the state level and rejected by huge margins in Colorado. The folks who say the Dems should just go ahed, win elections and enact single payer are deluding themselves. Obamacare was already deadly for Obama’s presidency, not because it wasn’t radical enough but because enough Americans felt sincerely that this was a step too far towards “socialism”.

15

JanieM 06.29.18 at 6:25 pm

Z: just make every D candidate, every single one, state calmly and explicitly…

Z, you are one of my favorite CT commenters, but you have gone off into the weeds with this one, especially since it’s framed as a response to a request to explain how it could be done. Who do you think is going to “make” the D candidates do anything? This isn’t the lockstep Rs you’re talking about.

16

John Quiggin 06.29.18 at 8:28 pm

“That this hasn’t happened in the US, as opposed to al most the entire world, should give JQ pause. “

Equally, the fact that has happened in a number of states over the past few years, with little controversy, should give pause to those who say it’s impossible.

17

Layman 06.29.18 at 8:31 pm

TM: “As JQ points out, a democratic majority could abolish the death penalty at any time.”

There are some steps missing here. Can you describe exactly how this happens?

18

N. N. 06.29.18 at 9:14 pm

The inconvenient truth is that there is sufficient popular support, probably a majority, for the cruel, revenge-based penal system that the US has adopted. […] But most of these policies have strong popular support, or they wouldn’t exist.

False. It suffices that the majority be indifferent. And overwhelmingly the most important factor explaining the indifference is, in turn, pure empirical ignorance: most people don’t have the slightest idea how cruel and how revenge-based the system is. This is backed up by public opinion research on crime and criminal justice, which time and again shows that the majority consistently underestimates the harshness of the existing penal system.

And when asked what kind of a system they would like, people typically opt for one which they imagine would be more harsh than the existing one, but which would in fact be considerably less harsh – because their erroneous view of the lack of harshness in the existing system is so wildly overblown!

The criminologists Julian Roberts and Loretta Stalans made this point comprehensively nearly 20 years ago in their book Public Opinion, Crime and Criminal Justice (2000), and today there is an entire extensive research literature on it, at the intersection of criminology and political science.

“Strong popular support” is precisely what the system does not have. What it does have is support that is very widespread, but at the same time paper-thin.

19

Joshua W. Burton 06.29.18 at 11:03 pm

Equally, the fact that has happened in a number of states over the past few years, with little controversy, should give pause to those who say it’s impossible.

Which gives me an excuse to put in a word for what my own state (IL) did to get there: moratorium and review, exoneration where warranted and blanket commutation, repeat as needed until political conditions favor abolition (this took about a decade here, not long enough to refill even a tenth of pre-2000 death row beds). Every one of the 167 inmates on IL death row at the time of the 2000 moratorium had turned down a chance to plead guilty in exchange for life without parole; 17 of them were innocent and would still be in prison today if they hadn’t self-selected for liberty or death. Until we can lift the monstrous injustice of both state murder and state kidnapping from every factually innocent convict (and preferably from the guilty as well), death row serves a useful role as a triage center for identifying the critical cases for judicial review. By all means stop killing them for a year or fifty while we sort it out, but not sentencing them to death is several steps from the top of our collective moral to-do list.

As for where capital punishment stands with respect to other punishment on the scale of moral justice, intuition suggests that the justification for any coercive state action should be weighed against the general outrage that action would elicit if carried out privately. Comparing the routine news coverage of individual premeditated murders with the sensational coverage of individual private abductions, state justification for even humane long incarceration (never mind the American sort) would have to be far stronger than that for state execution to be morally convincing. This “general outrage” moral intuition is well captured by the “cruel and unusual” clause in the English Bill of Rights and the US 8th Amendment, though not in the practical jurisprudence that has grown from them. If prison cells were no crueler than we all know they are, and as unusual as they would be without existing governments having built them, it would be a heavy lift to argue for them to be built anew under color of law. By contrast, premeditated execution of unarmed hostages under guard or parole is a particularly low and disreputable sort of murder, but if the state stopped doing it, it would still not be unusual nor necessarily cruel.

20

Joshua W. Burton 06.29.18 at 11:29 pm

Talk of Congress this and Congress that is largely neither here nor there, because 499 of every 500 executions are carried out by states.

But, as in the case of Dzhokar Tsarnaev, the federal death penalty raises particular concern because it is usually sought in cases where federal law is trampling on state criminal law (or tribal autonomy in reservation cases), with insufficient regard for double jeopardy and the will of the voters directly concerned. Massachusetts had a declared public memorial day fifty years after its last political execution (Sacco and Venzetti), and has not executed anyone at all since 1947, but was powerless to prevent a capital trial from going forward in Boston in 2015, nor the transfer of Tsarnaev across state lines to ADX Florence in Colorado (and, sooner or later, to death row in Terre Haute, Indiana).

21

John Quiggin 06.30.18 at 1:32 am

As regards feasibility of action at the federal level

* The Congress could obviously remove the death penalty from federal law, as noted by JWB @20
* Repeal of the Effective Death Penalty Act would reinstate habeas corpus protections and greatly enhance appeal rights
* A new Civil Rights Acts could protect all defendants against many of the abuses that are routine at the state level

Barring extreme forms of judicial legislation, the SC couldn’t do anything about the first two. There’s a possibility they might try to use the 10th Amendment against a Civil Rights Acts in which case expansion would be the appropriate response.

22

Peter T 06.30.18 at 4:35 am

“Barring extreme forms of judicial legislation…”

The current Republican judges on SC has shown themselves perfectly willing to enact extreme forms of judicial legislation (starting with Bush vs Gore). They are unlikely to become more moderate in this.

23

Alex SL 06.30.18 at 10:13 am

IANAA (I am not an American), but is the general problem not that a lot of good stuff would be possible if it were only written into law, but that the US system makes it pretty easy to (1) block progress and (2) tear things down? To get anything progressive done they would need reliable majorities in both senate and house and a president, and that happens only very rarely, and it happens ever more rarely given that the senate and electoral college are naturally gerrymandered to favour rural conservatives and the house artificially so.

If it was ever about what the majority of the people wants my understanding is that there would be much tighter gun laws, higher taxes on the wealthy, and Roe vs. Wade would not be in any danger whatsoever.

24

TM 06.30.18 at 10:51 am

“Gallup reported that, in a nationwide survey of 1,028 adults polled October 5-11, 2017, 55% of Americans said they are “in favor of the death penalty for a person convicted of murder,” down from a reported 60% in October 2016.”

https://deathpenaltyinfo.org/Gallup-Support_for_Death_Penalty_Falls_in_2017

The good news is that this was the lowest level in 45 years. The high point was 80% support in 1994. The fact remains that the death penalty continues to enjoy clear majority support and that in many places candidates for office who oppose the death penalty are unlikely to be elected. You guys can continue to ignore these facts or sugarcoat them by saying that people are just indifferend and ignorant. The result is the same.

To answer your question Layman, perhaps there are some steps missing but, if a majority of Americans supported abolishing the death penalty and voted accordingly, we would be having a different debate. As long as there IS no such majority, speculation seems pointless.

25

Layman 06.30.18 at 11:05 am

JQ: “Equally, the fact that has happened in a number of states over the past few years, with little controversy, should give pause to those who say it’s impossible.”

Yet no one is saying it’s impossible; they’re saying that statements of the form offered by TM (“As JQ points out, a democratic majority could abolish the death penalty at any time“) are manifestly wrong. A very strong majority support tougher gun restrictions, yet there are no tougher gun restrictions, because it takes a big majority *in the House and Senate* to make that happen, and popular support for gun control doesn’t translate into those legislative majorities for structural and gerrymandering reasons.

26

John Quiggin 06.30.18 at 7:12 pm

So, how is all this different from equal marriage?

27

Z 06.30.18 at 7:27 pm

JanieM Z, you are one of my favorite CT commenters

Stop, you’re making me blush…

but you have gone off into the weeds with this one, especially since it’s framed as a response to a request to explain how it could be done. Who do you think is going to “make” the D candidates do anything?

The electorate? This might be misguided but my impression is that there is a sizeable part of the American electorate which is sane* about all these issues. There is little point in trying to convince the other side, or to negotiate with it, while the Sanders campaign showed that advocating firmly left positions is popular. So, I think there is a lot to gain in being steadfast. And at this stage, what is there to lose, anyway?

*If this is not true, then indeed my proposed strategy is absurd.

28

Layman 06.30.18 at 8:37 pm

Z: “This might be misguided but my impression is that there is a sizeable part of the American electorate which is sane* about all these issues.”

Look, the U.S. is not any country in Europe. Gerrymandering has nullified the power of the majority by carving out safe seats for those in the minority, and the structure of the Senate is even more lopsided. In 2016, the Republicans won the popular vote for Congress by only 1%, but as a result took 55% of the seats in the
House. Models show that even if the Democrats win this year by +5%, they may very well still have fewer seats in the House. In the Senate, the Democrats beat the Republicans nationwide 54% to 43%, but the Republicans ended up with a 52 to 48 seat margin. The Democrats have almost no hope of taking control in the Senate. It could happen, but it’s not the likely outcome because the deck is stacked against it.

So the sanity of the majority of the electorate is irrelevant to the question, because the will of the majority is not reflected in governance. If you want to complain about US governance, that’s what you should be complaining about. Blaming the problem on insanity is an injustice to the majority who are clamoring for change. So, you know, recognize the actual problem and take another look at your proposed solution.

JQ: “So, how is all this different from equal marriage?”

It’s not different at all. That’s what I’ve been trying to say. We have marriage equality because 5 Justices said we did. If we’d tried to achieve it through legislation, it would never have made it out of committee, because the R’s in power are unalterably opposed to it, because their base is unalterably opposed to it, and for the purposes of their reelection only the base really matters (because gerrymandering and the structure of the Senate). If the makeup of the Court changes, we’ll probably lose marriage equality. The same is true if gun control, the death penalty, Medicare for all, etc. Any Justice Trump appoints will be worse than Kennedy on all of these issues.

29

John Quiggin 06.30.18 at 9:38 pm

“We have marriage equality because 5 Justices said we did.”

By the time they ruled, equal marriage was already winning in legislatures and in plebiscites, and had clear majority support. Going the wrong way on Obergefell would have produced a gigantic mess without changing the final outcome.

“the R’s in power are unalterably opposed to it, because their base is unalterably opposed to it’

As I said in my previous post, proposals for a constitutional amendment have died, even with the Repubs in full control of Congress. As regards the base, Repubs are now evenly split on the issue.

30

hph 06.30.18 at 10:35 pm

Threadjacking deleted. Nothing more from you on my posts for the next week, please. Anything more like this will result in a permanent ban.

31

J-D 07.01.18 at 7:43 am

N. N.

Thanks for that. I haven’t checked any of it for myself, and I’m not sure I’d know how to, but I’ve got no reason to doubt you and if you’re right that counts as good news when I can stand to get some.

32

Layman 07.01.18 at 1:31 pm

JQ: “By the time they ruled, equal marriage was already winning in legislatures and in plebiscites, and had clear majority support.”

As of 2013, only 7 states had legislated marriage equality, while 41 states had either constitutional bans on same-sex marriage or laws to that same effect. It was the Court striking down parts of DOMA in Windsor (2013) that started the drive to bring court actions against those states that resulted in marriage equality being the law of the land. Absent the Court, marriage equality would be restricted to a handful of blue states, and those marriages would not be recognized in the overwhelming majority of states.

“As regards the base, Repubs are now evenly split on the issue.”

Yes, and guess which half vote in primaries?

33

Z 07.01.18 at 7:21 pm

Layman So, you know, recognize the actual problem and take another look at your proposed solution.

OK, sure, sorry for the stupid (or at least unhelpful) interventions.

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