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Understanding the Death Penalty

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Death Penalty50 Years of Politics and Public Opinion

On November 6th California voters will go to the polls to vote on Proposition 34: The Savings, Accountability, and Full Enforcement (SAFE) California Act, which would replace California’s death penalty with a sentence of life in prison with no chance of a parole (LWOP). The success or failure of Prop 34 will not only determine the future of California’s capital punishment system, but it will be a bellwether for other states grappling with similar concerns.

The current deliberation over Prop 34 is but the most recent chapter in a long history of debate over capital punishment in this country. For California voters and those interested in the outcome of this proposal, understanding the last half-century of death penalty debate is fundamental to developing an informed opinion about this country’s most severe criminal sentence.

50 years ago, in Furman v. Georgia, the U.S. Supreme Court placed a moratorium on the death penalty, declaring it unconstitutional due to an intolerable pattern of arbitrary imposition of the sentence. Only four years later, in Gregg v. Georgia, the Court overturned the moratorium and declared that new statutes of “guided discretion” would solve the problems that the Court had previously identified.

The moratorium was overturned in 1976, the American bicentennial, and it marked the birth of the modern era of the American death penalty. The Justices’ 7-2 vote gave Georgia and other states such as Texas and Florida the judicial nod to resume executing prisoners. Afterwards, as the politics of the death penalty became central to even the highest office in the country, dozens of states would follow suit in re-implementing execution as the punishment for an array of serious crimes.

The Supreme Court’s swift and total turnaround was said to be a result of public concern about rising crime, a concern largely encouraged by strategic political maneuvering. Many politicians recognized opportunity in the public’s growing perceptions of insecurity, and as Americans demanded harsher punishments, elected public servants obliged. As the journalist Vince Beiser wrote, by the time of the 1976 Gregg v. Georgia decision, “Much of Middle America had grown deeply anxious about how society seemed to be unraveling. Drug use and crime were rising. Minorities, women, and homosexuals were demanding power and respect. In this milieu, politicians increasingly learned that crime could pay—for them. From federal candidates to county sheriffs, would-be officeholders began vying to out-tough each other on law-and-order issues.”

Capital punishment became the marker by which one could identify a candidate’s willingness to come down hard on crime. This political co-option of execution—which continues to impact politics today—resulted in many of the highest profile endorsements of the death penalty in American history. Those who did not endorse the practice often faced dire political consequences. In the 1988 presidential elections, Democratic primary winner Michael Dukakis was repeatedly bashed for opposing the death penalty. Bernard Shaw of CNN famously asked whether Dukakis would support the death penalty for someone who murdered and raped his wife Kitty. Dukakis’ reply that he was against the death penalty in all cases came to be seen as a major contributor to his loss in the election. Time Magazine referred to it as “Dukakis’ deadly response.”

At the same time, Republican primary winner and future president George H. W. Bush called for a dramatic extension of the scope of capital punishment, suggesting that convicted drug dealers be executed. Then-governor Bill Clinton learned from Bush’s over-the-top support for the death penalty: in 1992, Clinton left the campaign trail to personally oversee the execution of Ricky Ray Rector, presumably to preempt a Dukakis-like downfall in his own campaign. Punctuating his support for capital punishment, Clinton declared that Democrats “should no longer feel guilty about protecting the innocent.” Journalist Christopher Hitchens, among others, tore apart this move as both distasteful and emblematic of no-holds-barred cynical careerism. Accurate or not, it is clear that Clinton, a skilled strategist, felt certain that supporting the death penalty was necessary to compete on the national stage.

By the numbers, Clinton’s assessment was spot on. According to Gallup, a record majority of Americans supported capital punishment at the time, topping the charts at 80% support in 1994. By 1996, leading anti-death penalty scholar Hugo Adam Bedau observed that, “It is now widely assumed that no political candidate in the United States can hope to run for president, governor, or other high elective office if he or she can be selectively targeted as ‘soft on crime’: the candidate’s position on the death penalty is the litmus test.” The Achilles’ heel of Dukakis’ campaign set a fierce precedent in American politics.

The 1990s saw such a rise in the popularity of capital punishment that Speaker of the House Newt Gingrich went so far as to say that the key to building a new conservative majority in the United States rested with “low taxes and the death penalty.” Indeed, since Gingrich’s time as Speaker, the push to maintain and expand the death penalty has been largely a conservative project. Many Democrats, Clinton aside, have tried to avoid Dukakis’ fate by sidestepping the issue or voicing support only when necessary. But, as eminent death penalty scholar Austin Sarat has pointed out, conservatives may have gone too far.

Where the mid-1990s saw the highest point of support, the late 1990s followed with the highest number of executions in the modern era. Since the turn of the century, both have plummeted. Only 43 inmates were executed in 2011, less than half of the peak a decade earlier. The number of death sentences handed down has also fallen to record lows. One of the notable reasons for this downturn is public concern about executing wrongfully convicted prisoners, an apprehension which has been largely driven by new and more comprehensive methods of examining DNA evidence.

The number of Americans released from death row due to wrongful conviction has put the fallibility of capital punishment on trial with the American public. Over 130 innocent people have been released from death row since 1973, with 10 wrongful convictions overturned in 2003 alone. These alarming statistics have led to a flurry of activity.

In 2003, Governor George Ryan of Illinois commuted the sentences of 167 death row inmates to life without parole. The Governor’s decision followed the discovery of a series of wrongful convictions uncovered by the Illinois Innocence Project as well as other organizations and individuals. And there have been other developments: Connecticut has become the fifth state in that many years to abolish the death penalty, while North Carolina’s 2009 Racial Justice Act brought capital punishment’s longstanding relationship with racial discrimination back into the national spotlight. Aside from innocence and discrimination, arguments concerning the lack of deterrent effect, international trends, and cost have also gained traction in recent years.

It is hard to say whether or not the death penalty pendulum might swing back towards support, but for the time being the recent trend bodes well for anti-death penalty campaigners.

Abolition campaigns are looking to build on this momentum in their fight against capital punishment – and that fight has led directly to the presence of Prop 34 on California ballots this fall. The SAFE Act will weigh Californians’ dedication to the death penalty against the upsurge of arguments denouncing the practice. We will not find out until November 6th whether the majority of voters are persuaded by abolitionists or remain committed to “tough-on-crime” punishments, but one thing is certain: as voters cast their ballots, they will be adding their mark to a significant chapter in America’s long saga of death penalty politics.


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