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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

U.S.: Death penalty support no longer a given in red states

Almost exactly a year ago, we watched Nebraska become the 1st Republican-controlled state in more than 40 years to abolish the death penalty. At the time, we wondered this: Are conservatives starting to eschew the death penalty?

A year later, we have more of an answer: maybe. At least, there's increasing evidence to suggest Nebraska's move to drop the death penalty was not an anomaly in conservative circles but rather the start of a trend.

So far this legislative session, GOP state lawmakers in 10 states -- an unprecedented number -- sponsored or co-sponsored legislation to repeal the death penalty, including in perhaps the reddest state in the nation, Utah. None of them passed, but some got further than even their supporters expected. In Utah, a repeal bill passed the state Senate and a House committee. For the 1st time in decades, Missouri's full state Senate debated the issue. A Kentucky legislative committee held a hearing on repealing the death penalty for the 1st time since the state reinstated capital punishment in 1976 (even though it failed 9 to 8).

There's more evidence outside legislative circles. This fall, the National Association of Evangelicals changed its 40-year position of exclusive support for the death penalty to make room for evangelical Christians to take an alternative position on the death penalty. And in Georgia, anti-death-penalty advocates point out that last year no jury there handed out a death sentence for crimes that were eligible for it.

Kansas Republicans are the latest group of conservatives to question the death penalty. 2 years ago, the state GOP party switched its platform from supportive to neutral on the issue to make room for the growing number of Republicans who didn't back it. Then, at their state convention over the weekend, they batted down an attempt to put the death penalty back on their platform. The debate got so contentious that they cast secret ballots and eventually voted 90 to 75 to keep their position on the death penalty neutral.

There are just too many Republicans in the state who oppose the death penalty to have it on their platform, explained Ed O'Brien, a vice chairman of the Kansas Republican Party -- plus, Republican politicians and voters just aren't as focused on the death penalty as they used to be.

"If I was advising a candidate running for office, I'd say: If you want to make that an issue, go ahead. But there's other things that need to be addressed," he said.

It's possible that silence is giving conservatives who oppose the death penalty the opportunity to be heard. And from Kansas to Utah, conservatives are presenting their colleagues some pretty compelling -- and conservative -- reasons to abolish the death penalty.

Their reasoning generally falls under 1 of 3 arguments: 1) It's not moral and not consistent with conservatives' antiabortion (that is "pro-life") beliefs. 2) It's not fiscally sound and not consistent with conservatives' small-government policies. 3) Life in prison without parole is bad enough.

"I'm thinking that it's wrong for government to be in business in killing its own citizens," Utah state Sen. Steve Urquhart (R), who sponsored the repeal bill there, told me in February. "That cheapens life."

Former Kansas College Republicans president Dalton Glasscock said it's a generational issue, too. This summer, the group voted to oppose the death penalty on its official platform.

"My generation is looking for consistency on issues," he said. "I believe if we say we're pro-life, we need to be truly pro-life, from conception to death."

Of course, this is far from a settled issue on the right, and the opposition is still far outnumbered and still fighting to get a foothold. Nebraska's death penalty repeal is on hold and will be put to voters this November in a ballot measure that was funded in part by Gov. Pete Ricketts (R), who vetoed the original repeal last year. (The legislature then overrode it.)

Similarly, in Oklahoma, voters will decide this November whether to enshrine the death penalty in the state's constitution.

And when pharmaceutical giant Pfizer announced Friday it would keep its drugs from being used in lethal injections, some conservative groups criticized the decision. David Muhlhausen, a criminal justice expert with the Heritage Foundation, told the New York Times that Pfizer's move to get out of the death penalty market is not "in the public interest" because he believes research shows the death penalty can deter crimes.

More broadly speaking, there's evidence to suggest that elected Republicans are increasingly amenable to having a larger conversation on criminal justice reform, an issue traditionally owned by Democrats. As I wrote last year:

Alabama's Republican governor is calling for a $541 million tax package in part to offset overstuffed prisons, for instance. States like South Carolina and Georgia have also passed their own justice reform packages changing who gets sent to prison and for how long.

"When states in the Deep South, which have long had some of the country's harshest penal systems, make significant sentencing and prison reforms, you know something has changed," the New York Times's editorial board wrote in 2015.

As for why this is happening in isolated instances now, it's unclear. Turning to public opinion polling doesn't give us much clarity.

The Pew Research Center has found support for the death penalty is on a downward trend, but it credits that drop to Democrats backing away from it, not Republicans.

And Gallup has pegged support for the death penalty at a stable 60 %.

The bottom line: It's not like anyone can claim a groundswell of support on the right for dropping the death penalty. But it's notable that a year after we wondered whether Nebraska was an anomaly or the start of a trend, there's plenty of evidence to suggest that conservative opposition to the death penalty may indeed be a trend -- a small but growing one.

Source: Washington Post, Amber Phillips, May 18, 2016

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