By Austin Sarat
Amherst College
(THE CONVERSATION) - Ending the death penalty in the United States won't be easy.
After death penalty abolitionists slowly pushed toward its elimination for years, supporters of state killing have mounted a fierce effort in the courts and at the ballot box and regained some lost ground.
Perhaps their biggest victory was the presidential contest which put Donald Trump, an avid supporter of capital punishment, in the White House. But voting on ballot questions in California, Oklahoma and Nebraska also brought bad news for abolitionists.
I have spent more than two decadesstudyingthe death penalty and have lent my voice to those who seek its end. Looking back on 2016, I'd suggest that understanding the impact of ballot questions on the history of the death penalty may be the key to determining its future.
Slowing momentum?
In November, voters seemed to put a brake on two decades of accelerating momentum toward ending the death penalty.
That momentum has been felt across the entire nation: Death sentences have declined steadily from a high of 315 in 1998 to 30 in 2016. Much of this decline has come from states like Texas, Oklahoma and North Carolina which still have capital punishment on the books but impose it much less frequently than in the past.
Actual executions have also declined dramatically, dropping from 98 in 1999 to 20 in 2016.
In the last decade, seven states Connecticut, Delaware, Illinois, Maryland, New Jersey, New Mexico and New York have abolished the death penalty by legislative or judicial action. Governors have imposed moratoria on executions in Colorado, Oregon, Pennsylvania and Washington.
A majority of the American public continues to support the death penalty, although the number of people favoring it is lower than it has been since the 1970s.
But even with support for death penalties and executions waning, referenda in 2016 leaned in the opposite direction.
November's decisions
Consider California, a state that currently has 749 inmates on death row, but where no one has been executed since 2006.
Proposition 66, passed by voters last November, seeks to change that. It designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals all in an effort to speed up executions. The state Supreme Court is currently considering the constitutionality of the law, which opponents claim strips the court system of authority.
At the same time they approved Proposition 66, California voters also defeated Proposition 62, a measure that would have ended the death penalty for murder and replaced it with life in prison without parole.
Two-thirds of Oklahoma voters supported State Question 776 in November. That question declared that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution." It opened the way for Oklahoma to employ the gas chamber, electrocution or the firing squad if lethal injection is declared unconstitutional or is "otherwise unavailable."
The Nebraska electorate, by a margin of 61 percent to 39 percent, reinstated the death penalty just one year after state legislators voted to abolish it.
A history of abolitionist losses
This is nothing new.
Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once. From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America's tough-on-crime, law-and-order era.
In a few of those elections, voters have been asked only to approve technical changes in their state's death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.
Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.
Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.
Let's consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.
Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.
Democracy and the prospects of abolition
While we know that referenda are by no means perfect expressions of the will of the people, they tell us something important about the likely road to ending the death penalty. They suggest that in the United States, as has been the case in other democratic nations, its end will not come about as result of pressure from the populace.
Scholars like Yale law professor James Whitman say the effort to eliminate the death penalty pits elites against the will of the people. The history of death penalty referenda would seem to support that conclusion.
But democracy is not the same as government by popularity contest or by plebiscite. It is a system of government grounded in principles of respect for equality and the dignity of all citizens. Any time an electoral action violates those principles, it damages democracy.
That is what our history teaches. The United States almost certainly would not have ended slavery or given women the right to vote if those issues had been decided at the ballot box.
And neither will this country abolish the death penalty in that manner. Following the European example, it will do so only when politicians and judges conclude that democratic nations cannot put their own citizens to death and still be true to their own principles.
Recently, former New Mexico Governor Bill Richardson, who once carried out executions but now opposes capital punishment, wrote of his worry about what he called "America's isolation on this critical human rights issue." Richardson quoted a decision of the Connecticut State Supreme Court that said: "It always has been easier for us to execute those we see as inferior or less intrinsically worthy." I believe Richardson got it right when he concluded, "To effectively represent the interests of citizens, and protect our nation's role as a global leader, a new generation of policymakers and politicians must put the death penalty to rest once and for all."
Richardson's view is not antidemocratic. It is that of a citizen who knows full well the damage the death penalty does to the values that make our democracy strong.
Published: Mon, Jul 03, 2017
