Abolish the death penalty

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.

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.

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.

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.

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.

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.

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”.

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.

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).

“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.

“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.

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.

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

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?