The more we confront the death

penalty, the less we like it

By CAROL STEIKER AND JORDAN STEIKER
​ :00 AM
NOV 23, 2016 |​ 4

The firing squad execution chamber at the Utah State Prison, in Draper, Utah in June of 2010. (Trent
Nelson/Associated Press)

California's decision on Nov. 8 to reject Proposition 62 came as no surprise to

those of us who study capital punishment. No jurisdiction in human history
has ever permanently abolished the death penalty via plebiscite. The reason is
simple: referenda ask voters to respond at the level of symbolism, and voters
rarely resist abstract appeals to "law and order."
If citizens confront the death penalty in concrete context, however, they're
willing to end it.
When, for example, elected representatives consider death penalty legislation
and are exposed to weeks or months of testimony on how capital punishment
actually works, they — unlike often-impulsive voters at polling stations — sour
on the practice. Over the past decade, state legislatures have moved in only
one direction on the question of capital punishment. Six state legislatures
have jettisoned the death penalty — New Jersey, New Mexico, Illinois,
Connecticut, Maryland, and Nebraska — while none has reinstated it. Two
other state legislatures — New York and Delaware — have declined to revive
the death penalty after their highest courts struck it down.

When voters grapple with the death

penalty in their backyards, they also turn

against it.

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The example of Nebraska is particularly revealing. A referendum just restored
the death penalty there, but only after the Republican Legislature voted to
abolish it and a super-majority voted to preserve that abolition over the
governor's veto. In this reddest of red states, the legislature moved strongly
against the death penalty after deep engagement in hearings with issues such
as public safety, budgetary concerns, wrongful convictions and the
appropriateness of state killing.
When voters grapple with the death penalty in their backyards, they also turn
against it. In recent contests in major death penalty states — Texas, Alabama,
Louisiana and Florida — voters in local elections have ousted prosecutors who
championed the death penalty and sought it indiscriminately. Consider Angela
Corey's fate. As district attorney in Jacksonville, Fla., she led her county to
produce more death sentences per capita than any other locality in the United
States. Her constituents responded by voting overwhelmingly to oust "the
cruelest prosecutor in the country," as the Nation magazine once called her.
Prosecutors and juries get closer than anyone — save the executioner — to the
workings of the death penalty, since they must decide, respectively, whether to
seek it or impose it in a particular case. And in recent decades, both groups
have overwhelmingly favored life over death. The national decline in death
sentences is unprecedented and spectacular. From a high of more than 300
yearly in the mid-1990s, death sentences have fallen more than 80% to fewer
than 50 last year.
What accounts for this striking reduction in public support for the death
penalty by those who directly engage with the issue?
The death penalty is not a necessary tool to prevent crime, as many law
enforcement officials acknowledge. The National Research Council of the
National Academy of Sciences concluded in 2012 that there is no reliable
evidence that the death penalty helps to deter murder. Nor is the death
penalty the only just response to the most heinous crimes, as its elimination in
most democratic states attests. Indeed, the states that are most committed to
retaining the death penalty, such as China, Iran, Pakistan and Saudi Arabia,
are those least committed to justice in the form of fundamental human rights.
Against its minimal benefits, the death penalty imposes staggering costs,
financial and otherwise. In particular, those who directly encounter the death
penalty fear the risk of executing the innocent and imposing the death penalty
not on the "worst of the worst" but on the basis of race and other illegitimate
factors.
Voters might continue to register their abstract support for the punishment in
referenda and initiatives, but engaged decision-makers seem increasingly
unwilling to produce death sentences, pointing toward a continued decline.
The Supreme Court, in determining what constitutes a "cruel and unusual"
punishment, looks primarily at trends in both legislation and actual practice.
If trends continue, referenda notwithstanding, the practice of capital
punishment will wither away until the Supreme Court finally performs the
constitutional coup de grace that ends the death penalty for good. Such a
future will bring us — finally — into alignment with the rest of the Western
democracies who have firmly abolished it.