A Time to Kill The Death Penalty
To anyone who has opposed capital punishment in the U.S. since the 1970’s, the current death penalty climate is heartening. The Biden administration intends to abolish the federal death penalty and “incentivize” states to do the same, Virginia of all places has put the death penalty to death, executions and death sentences are trending down, and polls show a diminution in the public’s appetite for state-sanctioned killing. The recent spate of death row exonerations and the heinous Trump/Barr killing spree last year have made the public aware of the immoral underbelly of the punishment. The incoming Attorney General, Merrick Garland, who sent Timothy McVeigh to his death, has said he would like capital punishment abolished.
If the death penalty seems to be on the ropes, the question becomes how to deliver the knockout punch. As with many such things, the answer lies in understanding how we got to where we are now. And I think examining that road leads to one conclusion. We need a constitutional amendment that abolishes capital punishment in every jurisdiction in the United States.
The death penalty we have today is the result of a phoenix-like resurrection of the punishment in the mid-1970’s, after it had been declared unconstitutional by the Supreme Court in their 1972 Furman decision. That decision was not a knockout punch. It left open the possibility that the death penalty might be constitutional if certain alleged safeguards were enacted. State legislatures, especially in the South, pounced. Four years after Furman the Supreme Court congratulated the states on how well they’d done their homework and declared the revised statutes constitutional.
The death penalty soon became the crown jewel in the law and order movement. The rush to execute in the late ‘70’s was a cynical and brilliant move. What had been a philosophical debate about the morality of a state killing its own became a question of criminal justice policy and more specifically what to do with first-degree murderers. The presence of the death penalty was as potent as its implementation. Touted as a bulwark against marauding hordes in the street, its legacy in lynching was only thinly disguised. Tough on crime was the right’s mantra and nothing was tougher than an execution.
And while the “new” death penalty rampaged in the political sphere, sidelining philosophical objections to the punishment, opponents of the rightward push in criminal justice matters were forced to focus on the immediate dangers to the condemned. The debate over the death penalty became trench warfare over individual cases. Any punishment less than the “ultimate” one was seen by victims’ families as a slap in the face. Those defending the inmates were tarred as criminal coddlers and worse. And once this arena became the battlefield, conservatives had liberals right where they wanted them. Forget any talk about the morality of the state killing its own. Let’s talk about the crimes the condemned committed.
We are still on the same battlefield today. The fiction that the death penalty exacts justice from the worst of the worst is bolstered by the horrific details of the murders that led to the death sentences, ignoring the fact that for every such case that results in an execution there are numerous similar ones that don’t. Judicial arguments have devolved from constitutional questions about the morality of capital punishment to picayune quarrels about the drug protocols used in lethal injection. Appalling evidence of racial bias in the implementation of the death penalty is sloughed off by the Supreme Court. Opponents of executions have been reduced to carrying signs outside prisons and pleading with governors to show mercy. Sadly, principled arguments seem quaint.
Current efforts to abolish the death penalty must by necessity be carried out on a state-by-state basis. Lobbying individual state legislators is a costly and slow process that in the end is subject to shifting majorities in those states. Victories like that in Virginia are years in the making and not necessarily permanent. Nebraska abolished its death penalty in 2015, overriding a veto by Governor Pete Rickets, who promptly turned around and, using his personal wealth and a cynical, truth-challenged referendum campaign, managed to repeal the repeal.
The death penalty’s resilience should be of concern to anyone working for abolition today. It is one of the main reasons a constitutional amendment is crucial to the complete elimination of capital punishment from our society. In past decades proposing a push for a constitutional amendment among abolitionists was a non-starter. Conservatives had so neatly defined the arena in which the death penalty was “debated” that there was zero chance an amendment bill would make it through Congress much less garner the requisite number of ratifying states.
But the atmosphere today is much less daunting. Thirty-nine states have either abolished the death penalty or have not used it in the last five years. Thirty-eight states are needed for ratification of a constitutional amendment. If Virginia is any indication, state politicians are not treating capital punishment as the third rail they have in the past. There is now a middle ground in which the fear of executing the innocent is real, and the completely transparent politics of the Trump/Barr slaughter have given many pause. The Black Lives Matter movement understands that there is no place in our society where Black lives matter less than in the implementation of the death penalty. With the White House fully behind abolition, as it has not been since the reinstitution of the death penalty in the ‘70’s, the prospect of top down leadership on the issue bodes well for an amendment’s success.
The greatest benefit of a push for a constitutional amendment is that it would return the debate to the place it was in in the late 1960’s. It would be a nationwide conversation as opposed to the localized ones we have now. And it would include philosophical elements which have been missing from the debate for decades. The right would probably not be swayed, especially if they are still glued to Trump, but fence-sitters would have to declare their views on the morality of the punishment, and progressives and establishment politicians on the left would most likely be unified in their support for the amendment.
Perhaps the best reason for a constitutional amendment abolishing the death penalty would be the way it would affect our standing on the world stage. For decades the presence of the death penalty in our society has been a puzzle to and a cause of criticism by other countries in the developed world, ones that abolished the punishment on principled grounds long ago. Were we to have a piecemeal abolition that leaned heavily on technical and constitutional matters and probably wouldn’t include deeply red states like Alabama, the world would see the effort as incomplete. In their eyes we would still be human rights violators because we would not have purged the stain of state-sanctioned killing from our system. A constitutional amendment would be a different matter. Our attempts at moral leadership in the world would not be met with the skepticism they are met with today were we to declare through an amendment to our founding document that the state has no right to kill its own.
Children raised in a society that has said it is all right to kill, children who don’t understand the qualifiers in our death penalty laws, are brought up with the implicit understanding that it is sometimes okay to snuff out the life of another human being. You can draw a straight line, I believe, from the reimposition of the death penalty nearly fifty years ago to the execution of George Floyd under forty-five year-old Derek Chauvin’s knee. A society which executes its own models behavior for its citizens that can lead individuals from criminal murderers to members of law enforcement to become de facto judge, jury and executioner. Completely eliminating the death penalty from our society will at the very least send a message to our children that it is never okay to kill.
In short, the death penalty has to be pulled out by the roots. Of the methods to do that a constitutional amendment, difficult to enact, perhaps, but because of that difficult to reverse, is the best way to completely eradicate state-sanctioned killing from our midst. While the Biden administration is working to Build Back Better, the movement for the abolition of the death penalty in this country should be working to Tear Down Better.
