The moral argument doesn't work. Opponents of capital punishment in New Hampshire succeeded with a different approach.
When New Hampshire abolished the death penalty on Thursday, the reaction to the news—at least nationally—was rather muted. Here was a New England state, after all, whose machinery of death had rusted long ago. “This debate has been largely symbolic, because New Hampshire has neither an active death penalty system nor any executions on the horizon,” The Washington Post reported. “The state has only one person on death row … and last carried out an execution in 1939.”
It is true that New Hampshire never had much use for capital punishment. Since its first use in 1734, New Hampshire has executed only 24 people. But there is greater significance here than it seems. For starters, New Hampshire joins a growing trend. Now, since 2007, seven states have abolished capital punishment by legislative action, and three by judicial decree. (Nebraska abolished it legislatively, but voters subsequently reinstated it in a referendum.) Four other states have a moratorium in place preventing anyone from being executed. This period has been one of the most successful in the modern history of death penalty abolitionism.
And the politics of New Hampshire are not those of, say, Massachusetts. The state—whose official motto, emblazoned on license plates, is “Live Free or Die”—was a Republican stronghold until the early 1990s, and retains a libertarian streak. While the state Senate and House are both controlled by Democrats, they needed votes from across the aisle to reach the two-thirds threshold to override Republican Governor Chris Sununu.
There are thus important lessons from New Hampshire about how abolitionists can be successful across the country—namely, by shifting the grounds of the debate so as not to be painted as soft on crime or out of touch with mainstream American values.
Their success has its roots in a decades-long struggle. In 2000, both houses of the New Hampshire legislature voted to end the death penalty, only to have Democratic Governor Jeanne Shaheen veto the bill; the legislature failed to override her. Shaheen explained her decision by saying, “There are some murders that are so brutal and heinous that the death penalty is the only appropriate penalty.”
This appeal to an eye for an eye kind of justice has long provided the fuel to propel support for the death penalty. Four years after Shaheen’s veto, Republican Governor Craig Benson made a similar argument in explaining his veto of legislation that would have raised the minimum age to execute someone from 17 to 18. “When somebody, regardless of their age, is bold enough to take the life of a police officer, there should be no exceptions—we should make sure that they should pay the ultimate price,” he said. Earlier this month, Sununu defended capital punishment as “common sense,” adding that the repeal bill was an “injustice … to law enforcement and other victims of violent crime across the state.” (Michael Addison, the only man in death row in the state, was sentenced to death for killing a Manchester police officer.)
Similar arguments frequently are heard at the national level. In explaining the Supreme Court’s decision not to hear the 1994 case Callins v. Collins, Justice Antonin Scalia famously argued that abolitionists—including Justice Harry Blackmun, whose dissent from the Court’s decision is equally famous—underplay the gravity and heinousness of the crimes for which the death penalty is an appropriate punishment.
“Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection,” Scalia wrote. “He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us—the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death by injection which Justice Blackmun describes looks pretty desirable next to that.”
Other justices have shown little patience for the extended period of appeal that follows a capital sentence. Earlier this year, Neil Gorsuch, Scalia’s successor on the Court, noted that “both the State and the victims of crime have an important interest in the timely enforcement of a (death) sentence.”
Traditionally, opponents of the death penalty have responded to such arguments by claiming that even the most heinous criminals are entitled to be treated with dignity or that there is nothing that anyone can do to forfeit their “right to have rights.” Each of these arguments rejects the simple and appealing rationale for capital punishment: retribution. But in doing so, it puts opponents of the death penalty on the side of society’s most despised and notorious criminals, of cop killers and of child murderers. It is not surprising, then, that such arguments, while popular in philosophical and political commentary, have never carried the day in the debate about capital punishment in the United States.
New Hampshire abolitionists avoided this pitfall, changing the argument in ways that can and do appeal to a broader range of citizens. They allied themselves with the plight of the families of murder victims. “I am grateful to the many survivors of murder victims who bravely shared their stories with the Legislature this session, many of whom told us that the death penalty, with its requisite long legal process, only prolongs the pain and trauma of their loss,” said Democratic Senator Martha Hennessey in explaining her vote to override the veto.
They also avoided the soft-on-crime label by noting that the death penalty does not make citizens safer and that it is “archaic, costly, discriminatory and violent.” And they enlisted conservative allies. As one New Hampshire abolitionist said, “more conservatives than ever know the death penalty is a failed government program that does not value life, threatens innocent people, and wastes money.”
The campaign to abolish capital punishment succeeded in New Hampshire, just as it has succeeded elsewhere, because abolitionists resisted the temptation to engage with the red meat arguments of many death penalty supporters. They appealed to American values of fairness, equal treatment, and pragmatism. In so doing, they formed a coalition of legislators, political leaders, and citizens who shared the late Supreme Court Justice Harry Blackmun’s view that it is time to “stop tinkering with the machinery of death.”
Source: The New Republic, Commentary; Austin Sarat, June 1, 2019. Austin Sarat is a professor of jurisprudence and political science at Amherst College and author of The Death Penalty on the Ballot: American Democracy and the Fate of Capital Punishment
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
