New Year’s Prayer: Ending the American Death Penalty by End of Decade
The first social cause I joined, as a teenager in Florida, was the movement to abolish the death penalty. It was a hard time to be against executing convicted murderers. In the early 1960s, polls showed that most Americans (but not a large majority) wanted to abolish the death penalty. But the social unrest of the decade, combined with rising crime rates, much of it related to increased drug abuse, changed that view. By the time the U.S. Supreme Court struck down state death penalties as then written as unconstitutional violations of the 8th Amendment’s ban on “cruel and unusual punishment” in 1972 (Furman v. Georgia), the public reacted angrily at the Court’s “liberalism.” State legislatures quickly acted to change their death penalty statutes to meet the Court’s standards (consistent application and a 2-stage trial in which guilt was decided prior to a decision between death and life imprisonment) and in 1976, the Supreme Court ruled in Gregg v. Georgia that these revised statutes passed constitutional muster. The public roared its approval and rushed to find candidates to execute. By the early 1990s, popular support for capital punishment in the U.S. was at an all-time high. Bill Clinton interrupted his campaign for U.S. president in 1992 to rush home and sign a death penalty execution order as governor of Arkansas. When Clinton won the nomination, he changed the Democratic platform, long opposed to the death penalty, to support it. As president, Clinton expanded the federal death penalty to include over 50 crimes. Support for the death penalty remained high despite growing evidence that it was applied in a racially biased manner (if the victim is white, the odds increase that the prosecution will ask for the death penalty and black killers of white victims are far more likely to draw a death sentence than white killers of black victims). In 1987, the Supreme Court acknowledged that racial bias in McClesky v. Kemp but ruled that it had to be proven in each particular case in order to be unconstitutional. (The logic of McClesky contradicts that of Furman and Gregg since the acknowledgement of racial bias is an acknowledgement of arbitrariness which Furman and Gregg ruled had to be eliminated, but by the time of McClesky the Court’s makeup was far more conservative.) In 1993, the Supreme Court even ruled that, absent other constitutional issues, even new evidence that the convicted defendant is actually innocent is not sufficient to prevent execution (Herrera v. Collins)!
During all this time, public support for the death penalty remained high, to the extreme frustration of abolitionists like myself. All our moral arguments fell on deaf ears. But, then developments began which started to unravel this. First, throughout the decade of the ’90s, the number of executions increased dramatically. As this happened, people’s theoretical support for the death penalty began to be in tension with a discomfort at the sheer volume of executions. Next, journalism students in Chicago ran a series of investigative articles showing the Illinois death penalty system to be very broken–full of errors that made the execution of innocent people likely. They showed that, since the restoration of the death penalty post-Gregg, more people had been freed from Illinois’ death row (because of new evidence of innocence) than had been executed. This story became national news and alarmed much of the public (although many governors rushed to assure their citizens that their states had no such problems–despite evidence to the contrary). In 2000, Illinois Gov. Ryan, a Republican, ordered a moratorium on executions “until he could be morally certain that no innocent person would be executed in Illinois, and before he left office, he cleared the IL death row by commuting all sentences to life imprisonment. The Illinois legislature tried to reform the death penalty system, but public support continued to decline.
Meanwhile, DNA science began in the ’90s to demonstrate that many convicted criminals–including those convicted by several eyewitnesses–were wrongly convicted–even many on death rows. More sentences were overturned and more people exonerated and released after years on death rows. As the new decade dawned, even with the advent of a “war on terror,” executions declined sharply across the nation. Abolitionists began to make headway for the first time in decades.
Then the costs of the death penalty became clear. Like most abolitionists, I am uncomfortable with the idea that money should be a factor. Human life should always trump monetary concerns. But most supporters of the death penalty believe that it is cheaper than life imprisonment and, since they believe murderers have forfeited a right to life, they believe that keeping such people alive at taxpayer expense is unwarranted. But the facts are otherwise. Study after study has shown that the death penalty is more expensive than life imprisonment without parole. Nor is it just the appeals process that is expensive: capital cases take extra security and capital trials cost extra, especially the two-stage sentencing process. While on death row, the expenses continue, including the need to keep death row inmates separate from the general prison population while working through the appeals process. The state of Maryland just concluded an exhaustive study showing that the death penalty was costing taxpayers an avge. of $37 million per case, far more than murder cases where the death penalty is off the table. In the midst of economic hard times, recognition of the economic costs of capital punishment opens the door for many otherwise “law and order” legislators to hear arguments for the reliability of life imprisonment without parole and moral arguments against the death penalty. Both New Mexico and Illinois cited the costs of the death penalty when they abolished it. As countries in the European Union are refusing to export the chemicals needed for lethal injections, these costs will continue to rise.
In 2004, the New York State Supreme Court struck down part of the NY death penalty as a violation of the state constitution. In 2007, the state legislature prevented an attempt to re-write and restore that death penalty. This was the first state abolition of capital punishment since Massachusetts and Rhode Island abolished capital punishment in 1984! But things were about to pick up speed. New Jersey’s legislature abolished capital punishment in 2007. New Mexico abolished its death penalty in 2009. Several states came close to abolishing their death penalties in 2009-2011: Colorado came within 2 votes of abolishing the death penalty in 2009. Connecticut did vote to abolish the death penalty, but the Republican governor vetoed the legislation. In 2011, CT’s new governor, a Democrat, said he would sign legislation to abolish the death penalty, but he did not put forth effort to get it through the state legislature and an emotional case led the legislature to fall short. Maryland’s Democratic governor actually campaigned on abolishing the death penalty. He has not yet succeeded, but he continues to push such legislation. New Hampshire came close to abolishing the death penalty in 2010. The State of Washington came close to abolishing the death penalty in 2011. In 2011, Illinois finally abolished it’s death penalty altogether. This now brings the number of states without capital punishment to 16, plus the District of Columbia.
In 2012, Maryland, Ohio, Kansas, and Connecticut all are introducing legislation to abolish the death penalty. I think the chances of passage are very good in Connecticut and Maryland. Ohio is hard to call. In many ways, it is conservative, but it is also next door to Michigan which hasn’t had the death penalty since becoming a state in 1846! More and more influential people are speaking out against the death penalty. The state where passage is least likely is Kansas, which is deeply conservative, but, like Ohio, it is next door to a state without the death penalty(Iowa) that is similar in culture, so anything is possible. I think it is possible that Colorado and New Hampshire will also abolish the death penalty in the near future. Even in Kentucky, where I live, there is a growing movement for a moratorium on executions–an important first step in abolition.
California, which has the largest number of people on death row (although Texas, Virginia, and Florida are responsible for the vast majority of executions in this country), is poised to put abolition of the death penalty on the ballot for the public to vote up or down. Both sides will mobilize this year, and it will be intertwined with the national elections this year. If California abolitionists succeed in abolishing the death penalty this year, it will have a tremendous influence on other states. If the effort fails, but comes close, it will return in the next year or so and I predict it will pass.
The momentum on this issue has finally turned toward abolition in the United States. The international isolation is also having an effect. U. S. citizens don’t like being told what to do by others (although we constantly assume that we have the right to tell the rest of the world what to do). Disapproval of the death penalty by other nations, especially in Europe, usually makes Americans defensive. But the international and diplomatic isolation DOES have an effect. U.S. lawmakers have already found that they often cannot get nations to extradite suspected murderers or suspected terrorists unless they receive guarantees that the suspect won’t be executed. This lack of cooperation is frustrating and has led the U.S. State Department to testify before Congress that an abolition of the federal and military death penalties would greatly aid cooperation in anti-terrorism efforts.
Religious leaders are helping, too. Of course, the most of the mainline denominations of the National Council of Churches have long been on record as opposing the death penalty, but quite often these statements were very far from the beliefs of most laity in those very denominations. But the strong opposition of the Roman Catholic Church, especially beginning in the 1980s, has gone beyond statements to catechetical instruction at the parish level, leading more and more Catholic laity (including elected Catholic public officials) who oppose the death penalty. Several faith groups have organized around this issue and that has, again, changed the landscape of the debate.
So, my prayer and hope (which I believe to be realistic) is that by the end of this decade (2020) we will see the death penalty eliminated in the United States.
If you would like to help make this prayer happen, take action: 1)Write your state legislators, governors, and U.S. Representatives and urge them to support abolition, especially as co-sponsors of bills for abolition or a moratorium on executions. 2) Write letters to the editorial pages of local papers supporting abolition, especially if a bill for abolition is nearing an important hearing or vote. Legislator and elected officials pay far more attention to letters to the editor than to most letters and phone calls and far more than to email petitions. They assume that every letter on a subject represents 5-10 others who feel the same way. 2-3 letters on a given subject in a short time will get at least a legislative aid assigned to research an issue. 3) Get your church, synagogue, mosque or civic association to pass a resolution against the death penalty and have the press cover this. 4) Join an anti-death penalty organization in your area.