America - The Economist - Democracy and the death penalty - An evolving debate

Source: The Economist

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.