MY PRINT column this week reports on a striking evolution in the death-penalty debate in America. There have been a spate of successes and partial victories by abolitionists in a string of states. These have ranged from the formal scrapping of capital punishment in five states since 2007 (at one end of the scale of ambition), to legal manoeuvres to block executions by mounting technical challenges to the cocktails of drugs used to kill convicts by lethal injection, at the other. More recently, a series of governors have signalled that they would sign a bill abolishing executions if sent one by their state legislature.
The column notes that there is nothing to say that the trend towards abolition must necessarily continue, and concedes that overall public opinion remains clearly in favour of the death penalty, with around 60% or more of Americans saying they want it retained as a punishment for murder. But it argues that something big has already changed: politicians with national ambitions are becoming braver about siding with the abolitionist camp. That is a big change since a generation ago, when politicians were haunted by memories of Michael Dukakis, and how his wonkishly expressed opposition to capital punishment in a televised debate sank his 1988 presidential run.
That development coincides with a tactical shift in the abolitionist camp. The case against the death penalty rests on several arguments.
There is the problem of executing the innocent, illustrated by the more than 100 prisoners exonerated from death row since capital punishment resumed in 1976, after a brief abolition by the Supreme Court.
There is the problem of the arbitrary application of the death penalty. In America, most executions are carried out in a handful of states, such as Texas, Florida and Oklahoma, and most death sentences are sought by prosecutors in a handful of counties in such states. Those rich enough to afford decent lawyers are less likely to be sentenced to death. And, as demonstrated by several painstaking studies (examples here and here), those who kill whites are several times more likely to be sentenced to death than those who kill blacks (though some of that racial skew is probably caused by the difficulty of finding juries in majority-black districts willing to impose death, so that prosecutors do not try).
There is the question of whether executions can ever be carried out in a way that does not amount to a cruel and unusual punishment. I would argue that this is a hurdle that becomes ever higher for death-penalty advocates to jump, as society becomes less and less accustomed to death as a public, visible phenomenon. If you doubt that, just read the words of state governors who actually have to sign death warrants and send their constituents to be strapped down and injected with poisons. While some, such as George W. Bush and Rick Perry of Texas, make a point of saying that they sleep soundly after executions, others disagree. My column cites the governors of Arkansas and Oregon, both of whom have presided over executions, and both of whom have now come to find the process of deciding who deserves to die so agonisingly difficult that they would favour abolition.
Finally, a growing number of studies have attempted to probe whether the presence of the death penalty has a deterrent effect. Politicians in favour of abolition point to the fact that death-penalty states (which are mostly in the south) have higher murder rates than non-death-penalty states (many of which are in the northeast). In truth this is hard to prove either way, because there are such a small number of executions compared to murders (a few dozen each year in America, next to many thousands of homicides), and because so many other factors affect crime rates, from poverty to policing to unemployment levels to the ownership of guns and the proportion of young men in the population. Indeed, a large-scale review of three decades worth of studies into deterrent effects, by the National Research Council of the National Academies, effectively declared them junk science and warned against anyone pretending to know what does and does not motivate murderers.
The abolitionist camp has made its greatest strides, arguably, by playing down moral arguments against executions, and playing up practical concerns. They note that years of funding endless appeals that often last decades, together with the costs of guarding prisoners on death row, means that—counter-intuitively—it is much cheaper to lock prisoners up for life without parole than it is to seek to execute them. Personally, I find that argument a little queasy-making, not least because it prods some zealots for execution to call for appeal rights to be curtailed.
More shrewdly, abolitionists have made sure to promote life without parole as the alternative to execution, taking care of the question of the worst of the worst being allowed out to commit fresh crimes.
All of this is pretty pragmatic, if you check opinion polls by such outfits as Gallup or the Pew Center for Research. These find that most Americans support the death penalty (though that support has fallen from 80% a generation ago to around 60% today). Most Americans think that executions are morally acceptable and applied fairly in America. Yet majorities also believe that the innocent are likely to have been executed by mistake, and are sceptical that executions have a deterrent effect. When offered life without parole as an alternative punishment to execution for murder, Americans divide almost evenly.
It is also too simple to talk about Americans as a block. The 2012 pre-election American Values Survey by the Public Religion Research Institute polled voters on whether they favoured life without parole or execution for murderers. It found sharp partisan, racial and gender differences.
The story of the last few years has been of an abolitionist movement that has been refining and honing its arguments with ever greater success. However, and I write this as someone who is a moral absolutist against the death penalty, the abolitionist camp has not done so well tackling a gigantic question: that of democracy.
In every Western democracy that has scrapped the death penalty, politicians have acted against the wishes of a majority of voters. If you were to draw a pyramid of accountability (or its lack), the pinnacle would be occupied by the European Union, which has made abolition of the death penalty a condition for membership of the club, irrespective of the wishes of any voter or political party. A European politician running on a platform of restoring capital punishment would be wasting his and the voters' time, unless he was willing to leave the EU as well.
Next on the pyramid come those technical lawsuits blocking executions in death-penalty states, or the actions in the Supreme Court which outlawed executions for the mentally retarded and juveniles, as unconstitutional. Then, arguably, come the actions of elected governors such as Mario Cuomo of New York, who spent 12 years single-handedly vetoing bills from his state legislature seeking to restore the death penalty (New York brought the penalty back under his successor, only to abolish it again a few years ago).
The next tier is occupied by state legislatures which vote to abolish the death penalty even though majorities of their voters support its retention. Finally, on the most directly democratic tier, come state-wide referendums and ballot initiatives.
And here opponents of the death penalty who support direct democracy have a problem. Because no referendum has yet passed. One just failed narrowly in liberal California, and in most states, most politicians suspect that ballot measures are more or less unwinnable. In Colorado, the question is acutely topical. Four state legislators have sponsored a fresh attempt to abolish their state's death penalty. Two of the four represent Aurora, the town which last summer witnessed a mass killing in a cinema. But a third Aurora representative, who is a staunch advocate of the death penalty, in part because her own son was murdered and his killers currently sit on death row, is seeking to have the question put on the ballot in 2014, for all voters to decide. It is not clear whether her ballot initiative will be approved by the state legislature. What is clear is that abolitionists hope it is not, because they fear they would lose.
So is abolition democratic at all? That depends on what version of democratic accountability you favour. The most combative abolitionists, such as Mario Cuomo, openly argue that they know better than their voters, and are saving them from their baser instincts. This represents the representative model eloquently outlined by Edmund Burke, when he told his 18th century constituents in Bristol that while he was most interested in their opinions, and would attentively listen to them, he would reject any talk of "authoritative instructions" or "mandates issued" which he might be expected to obey, even when they ran counter to his own conscience and judgment.
Here is Mr Cuomo, defending his years of vetoing death-penalty bills:
I have studied the death penalty for more than half my lifetime. I have debated it hundreds of times. I have heard all the arguments, analyzed all the evidence I could find, measured public opinion when it was opposed to the practice, when it was indifferent, and when it was passionately in favor. Always I have concluded the death penalty is wrong because it lowers us all; it is a surrender to the worst that is in us; it uses a power—the official power to kill by execution—that has never elevated a society, never brought back a life, never inspired anything but hate... And it has killed many innocent people...
Because death penalty proponents have no other way to defend this policy, they cling unabashedly to the blunt simplicity of the ancient impulse that has always spurred the call for death: the desire for revenge. That was the bottom line of many debates on the floor of the state Senate and Assembly, to which I listened with great care during my tenure as governor. It came down to "an eye for an eye, tooth for a tooth."
If we adopted this maxim, where would it end? "You kill my son; I kill yours." "You rape my daughter; I rape yours." "You mutilate my body; I mutilate yours."
Because the death penalty was so popular during the time I served as governor, I was often asked why I spoke out so forcefully against it although the voters very much favored it. I tried to explain that I pushed this issue into the center of public dialogue because I believed the stakes went far beyond the death penalty itself. Capital punishment raises important questions about how, as a society, we view human beings. I believed as governor, and I still believe, that the practice and support for capital punishment is corrosive; that it is bad for a democratic citizenry and that it had to be objected to and so I did then, and I do now and will continue to for as long as it and I exist, because I believe we should be better than what we are in our weakest moments
In contrast, Mitch Daniels, interviewed in 2011 while he was still the Republican governor of Indiana, came fascinatingly close to admitting to a personal dislike of capital punishment while bowing to the superior force of popular opinion. Asked on CNN about capital punishment, Mr Daniels said that signing death warrants had given him his "loneliest" nights in office, and noted, with something a lot like relief, that no fresh death sentences had been handed down by Indiana juries, suggesting that the policy was "diminishing" by itself. He recalled:
It's the one thing I was least prepared for in taking on this assignment. The first such decision came—the first two or three came very quickly. I don't understand anybody who says they don't have at least some ambivalence about this subject, really on either side.
In our case, I'll tell you how we've resolved it. I, after an awful lot of thought and reflection and counseling with other people—I—the people of our state have said very emphatically that they believe, at least in the most extreme cases, this penalty is appropriate. I've decided it's not my—it was not for me to substitute my own individual—any individual judgment I might have for theirs
So how do politicians pushing for abolition defend their actions? After interviewing politicians for the print column, I was struck by how several made the same point: that they had spent some years pushing for an end to executions, and that at subsequent elections, they had been braced for a backlash or attacks by opponents, but that they never came. They seemed to be claiming that sort of absence of a backlash as a sort of back-to-front mandate. Is that reasonable? I think it is, but mostly because those same politicians also make the case, in public, that they ultimately view the death penalty as a moral issue.
That has to be the right approach. The death penalty must be a moral question, before it is an argument about costs or deterrence. Either it is right for the state to put people to death or it is not. I would believe that even if the death penalty were cheaper and proven to be a deterrent.
Abolitionists routinely argue that referendums are unwinnable because it is impossible to get voters to focus on the question clearly, and not get sidetracked by individual, high-profile murder cases. They add, sometimes, that civil rights for blacks would never have been achieved if put to a referendum.
As a practical matter, it cannot be a good idea to go too far down that road of defying popular will. Just look at the 1970s, when the Supreme Court abolished and reinstated the death penalty in a matter of a few years. Or the experience of Mario Cuomo in New York, who could only block capital punishment until he left office, when it was reinstated. Yet in states whose state legislatures have voted in recent years to abolish it, after long debate, there are no signs of it being brought back on to the statute books.
With apologies for a long posting, my conclusion is this. The case against the death penalty is strong and getting stronger. But there is a right and a wrong way to try to stop executions, especially in a country like America with such a strongly democratic tradition. At a minimum, the decision must be taken openly and for moral (rather than technical) reasons by elected politicians who face being thrown out of office if voters disapprove of their actions. To date, that is the path taken by 17 states and the District of Columbia. May many more follow, but they should do it the right way.
Readers' comments
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How about a death penalty without Due Process? How about the invocation of Martial Law at will? That seems or may be what the American President and Eric Holder wants when planning of use of Drones in America.
This implies Martial Law rather than Civil Law!
How do you feel about this Economist? Democrats and Republicans are disturbed! Is it worth your time and print space?
We don't have and never had Democracy. Just to get things straight
'No longer necessary', is viewed by the rest of the G7 as best applied to the 2nd amendment, not just to voting rules; as in countries like Switzerland owners of assault weapons, are deemed de facto, to be members of the Militia if not the Military & must report to their Commanding Officer monthly. Surely America should take note on this, from the most democratic country of all!
Please help me change the death penalty system. Go to whitehouse.gov, create an account, and sign my petition. I need 150 signatures for it to be publicly searchable. Thank you!
Link: http://wh.gov/vkT5
I'm somewhat ambivalent to the death penalty. I have no problem with it in theory, but in practice I know that errors are made constantly, and I could justify a thousand guilty criminals being executed for even one innocent man/woman. That for me is the only rock solid argument against capital punishment. I find the others to be rather flakely and almost cowardly. But because of the issues of miscarriages of justice I find myself reluctantly opposed to Capital Punishment
I used to live in one of those Southern states that fried everybody who needed it. One time a death row perp died of natural causes before he could be executed. The governor ordered the dead body strapped into the electric chair and executed again. No way was that perp going to be allowed to cheat justice!
Fry 'em all, then let God sort out any who might have been innocent.
The constitutional prohibition on "cruel and unusual" punishment raises the question of why are there so many methods of execution? If the presumption is made that involuntary death does not inherently run afoul of the "cruel and unusual" standard, why is there not widespread use of inert gas asphyxia as an execution method? Without oxygen for a long enough time, death is certain. Changing from an oxygen/nitrogen mix to an argon/nitrogen mix causes unconsciousness before death. The information I've seen implies this is a physically painless form of death. Is there a reason why it is not used for execution?
This is the humane way to execute someone. Just deplete the amount of oxygen in the air by pumping in nitrogen and the perp will go to sleep peacefully and never wake up. It is lacking in drama though, which might explain why it's not being used. When people go to see executions they want to see something dramatic like an electric chair with lots of smoke and sparks and an aroma of burnt bacon.
This is simple for me. We need to reform our prison system first. Right now we have large corporate interests that lobby, quite successfully, for long mandatory sentences. Which makes death the only other real threat to use with people. A bad threat at that since the majority of death row inmates faced death on the streets every day anyways.
Only once we sort out our system and truly change it from punishment to reform can we even begin to tell the worth of a death penalty and where to draw the line.
"[Abolitionist politicians] had been braced for a backlash or attacks by opponents, but that they never came. They seemed to be claiming that sort of absence of a backlash as a sort of back-to-front mandate. Is that reasonable? I think it is..."
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Lie to yourself all you want, but don't lie to us. The simple reason there's no backlash is that other issues are typically more pressing on election day. There is no crypto-mandate for abolition from most citizens.
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Some people deserve to die, and Obama's drone policy shows that truth is acknowledged across the political spectrum. We should extend the death penalty to violent rapists, and jack up our rate of good kills.
As far as I can tell, there are four main arguments against the death penalty:
1. It unfairly targets the poor and sometimes results innocent people being executed.
2. It is immoral for the state to kill people.
3. Execution is cruel and/or vengeful.
4. The death penalty, as it is applied in the USA, is overly expensive and results in a waste of resources.
In all honesty, I believe that only the fourth argument is strong.
1. The justice system in the USA naturally favors the people who have the money for good lawyers and poor people are naturally at a disadvantage and are more likely to be convicted. This is even more true for ethnic minorities. It is also inevitable that sometimes innocent people, particularly poor people from minority groups, get punished for crimes they did not commit. This is not a flaw of the death penalty, it is a flaw of our justice system and perhaps all justice systems. Ultimately, I think we need to tolerate the reality that innocent people are periodically punished. It could be argued that a person wrongly sentenced to life in prison might one day be found innocent and released; but that is incredibly unlikely and won't change the fact that his life has already been destroyed.
2. Setting aside the death penalty, the state routinely kills people through war and police action. I can’t imagine a future where that changes. If all types of state-sanctioned killings, the death penalty is the most rational, regulated, humane, and the least likely to fall upon an innocent person. The majority of the people killed by our bombings and drone strikes are innocent non-combatants and many of the combatants are guilty of no crime other than fighting for their country. When Rudy Eugene was executed extra-judicially by a police officer in Miami last year for eating another man’s face, no one cared. Instead people focus on fighting the death penalty simply because it is the easiest target.
3.Cruelty is largely subjective. I doubt I’m alone in believing that a decade in solitary confinement without the freedom to commit suicide is a far crueler and more terrifying fate than the death penalty. If our goal is to eliminate the cruelty out of our justice system, that would be a better target.
4. But the ultimate reality is that the main advantage of the death penalty *should* be to permanently eliminate people who are a threat to society. It should be cheaper to kill someone than to feed and house him indefinitely at the expense of tax payers. But in the USA, it is not. So while I do not see anything morally wrong with the death penalty, in the USA it does not serve a useful purpose.
Has anyone else noticed to that the posters on her ethat are most convinced that the US State, Local and Federal Government are administering the death penatly in an effictive and error free manner are the same posters who in all other policy matters wouldn't trust the government with a pair of scissors?
Same people who get all misty-eyed at everything the infallible military does.
If abolition is a moral absolute, democracy doesn't matter. I'm sure we could have found regional majorities, if not national ones, for many of America's most infamous policies at the times when they prevailed. Democracy is a tool, not an absolute in itself, and every country has principles it puts above majority rule. Often, it's policies like the court system, property rights and freedom of speech, which would easily fall victim to populist infringement without binding guarantees.
The same is true of other countries, naturally. Europe, in particular, has very good reasons for seeking the abolition of the death penalty from those who seek to join its club - this belief goes hand-in-hand with other restrictions on majority rule enacted since 1945, and is informed by Europe's witnessing of broadly-targetted crimes against humanity in the preceding decade.
A club, such as the EU, is a long-term commitment mechanism. Its raison d'etre is to get members to do things they otherwise wouldn't, but which they see as in their interest. True, a British hanging-fan may have to promise to leave the EU. But the same is true for a trade protectionist or an immigration opponent. Anyway, leaving the EU is hardly an outré or unheard-of opinion. There's nothing anti-democratic about requiring people to adhere to rules while in a club; it's basic freedom of assembly.
As for the queasy-making nature of effective arguments against the death penalty, that's an understandable position for a liberal newspaper columnist to take. For other groups in society, there are more pressing moral aspects to the death penalty than the comfort of advanced philosophical theorists. The hand-wringing about plebiscites, and the argumentative superiority of moral over technical reasons to cease executions, is so much centrism for its own sake.
It's interesting that the vast majority of the comments discuss whether the death penalty is right or wrong (and all I'll say on this is, if it is morally wrong for the State to execute criminals even after due process and a fair trial, then logically policemen should never carry guns, and the armed forces should be shut down, because the people they will inevitably kill can't be less deserving), even though the main point of the article is about something completely different; the fact that a major policy change is underway in the US, and has already taken place in the UK, even though a clear majority of the population is and always has been solidly against it.
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I agree with Lexington (and that doesn't often happen): if change is to take place, it should be done openly and through the proper methods, not by stealth. Unfortunately, this seems to be yet another case of the Left supporting the Will Of The People only when that will happens to be what they think the people should want.
"if it is morally wrong for the State to execute criminals even after due process and a fair trial, then logically policemen should never carry guns, and the armed forces should be shut down"
Not at all logical. A society without armed forces is liable to become a victim of aggressors. The same isn't true for a society without the death penalty, because so many alternatives are available.
As for the Left's reluctance to embrace democracy, isn't that true of all ideologies? Eventually, most people are going to disagree with what you believe, no matter what you believe.
You report: 'Most Americans think that executions are morally acceptable.' Most Americans also profess faith in Jesus Christ. So most Americans if they truly want to follow their Savior, should not morally accept it. One often hears reference to the Old Testament formula, this one from Deuteronomy 19:21: 'Show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.' Yet Christ negates this (Matthew 5:38-39): Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth; But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.'
Thus American Christians should advocate the abolition of the death penalty. Now.
But Christian morals apply only to individual Christians. Christianity has nothing to say about the policy of the State, and never has had. "Render unto Caesar" and all that.
States are made up of individuals.
"States are made up of individuals."
Correct. They are not made up of religions.
This is an exceptionally well written and thoughtful posting. Thank you.
An excellent posting, one I've been waiting to see articulated somewhere. That there is a fundamental reckoning to be had on the fact that the commonly expressed sentiment "law/politics lag behind" is turned on its head in these and other supremely moral questions. As an American, it is appalling to continually have the conversation as to WHY the death penalty is wrong. Your post and their answers points to an enduring tradition that thrives on the thrill of seeing clearly identified wrong-doers pay for their crimes. The witch hunts of Salem come to mind here as America's core roots in its moral fortitude is really put on trial here- and fails, time and time again.
an enduring tradition that thrives on the thrill of seeing clearly identified wrong-doers pay for their crimes.
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Eloquently spoken nonsense.
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Death penalty is not for revenge, it is a message to potential criminals that he won't get away with his crime if he dares to commit.
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Also, death penalty definitely stops hideous crimes. If it can't, neither will other penalty, like 10-20 years in prison. So, to say death penalty can't stop crimes is like to say that the western judicial system is a complete failure in protecting innocent people, hence should be thrown out of windows.
as a believer that Homo sapiens is NOT a social animal,but merely another two legged Nesting animal, it is necessary that society establish rules of behavior that promote constructive coexistence. This recognition of Society as the arbiter of human social engagement must also recognizeand accept, under a system of law,society´s need to exorcise those members who transgress established behavioral rules and wreak harm or suffering ona fellow homo sapiens. ahmencher@gmail.com
In Cleveland, we let the cops take care of it.
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13 Cleveland police officers who fired 137 rounds into car, killing 2, expected to be interviewed by investigators today
http://www.cleveland.com/metro/index.ssf/2012/12/13_cleveland_police_off...
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I heard: one cop walked up to the woman's window and unloaded a shotgun at her, another cop shot downward through the roof - gansta style.
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Maybe the NRA can hire them to put into schools.
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NPWFTL
Regards
The tired argument that it is about about revenge is a lazy generalization (which, by the way, could be invoked against ANY punishment; speeding tickets, etc... so should we abolish those?). Each person who supports the death penalty has his or her own reasons for doing so, and in my case, revenge has nothing to do with it.
Yes, I'm certain that innocent people have been executed. I'm also certain that innocent people have died at the end of a life sentence without parole. And I'm certain that innocent people have died as a result of governors, parole boards and others letting known murderers back out onto the streets.
For all its faults, the death penalty is the ONLY way to give society a watertight and very worthy guarantee that a known killer will not kill again.
Death penalty is wasteful. Hardened murderers and rapists should be put to use to save lives via organ donation. There are lots of good people out there dying on waiting lists for liver, kidney, bone marrow transplants. Unlike death penalty, most organ donation is not lethal, so if you are found innocent later, you get placed on the list to get your organs back. You really can't reverse death penalty. In addition to that, this idea will also solve the problem of prison violence among the inmates, as well a reduce future gang activity - a gang of cripples is really not that threatening.
There are not many organs that you can live without, Mr. Malkavian.
The organs I've listed above can be done with living donor. Heart transplant would be tricky, yes, but for the rest, partial removal and graft should do the trick, i think. But even a lethal organ harvesting is better than pointless death penalty, no? At least, criminal saves a life of a good person in exchange for the one he took.
You've never owned a Hammond.
For one thing, you sound like you are putting a blanket over all criminals of this type. If you want a better society, you should search for a better CORRECTIONAL system, not a slaughterhouse. These aren't bags of organs, they are humans. Not to mention, taking their organs without their permission falls under cruel and unusual punishment. You can't do it, much like you can't do it to any other citizen.
I'm talking about hard rapists and murderers, people who are likely to face death penalty. Those can not be corrected, and life without parole is the only alternative. Better society has little to do with it - any society will have its share of sociopaths.
We lock them up without their permission as well, so i don't think "involuntary" part of the argument works. Cruel and unusual? There's nothing cruel and unusual the procedure itself - lot of people do it voluntarily, out of kindness of their hearts. I'm not advocating torture - anesthesia is a standard operating procedure. If they don't want their life to be used to save another, perhaps they shouldn't take lives in the first place. You can't put other citizens in jail too, and yet that's what we do with murderers and rapists. So really, analogy doesn't work.