Reappraising Death: The New Debate over Capital Punishment

During a half-century of extraordinary social change, few issues have seemed as intractable as the death penalty. Mired in a conflicting set of Biblical imperatives, the debate generally pitted the idea of mercy versus that of “just deserts” in a contest of moral absolutes. At least since the 1988 presidential debates, most often the discussion came grinding to a halt with some variation of the Bernie Shaw-to-Michael Dukakis question: “But what if your wife were brutally murdered?” One measure of the death penalty’s signifying power was that, by the early 1990s, the issue had become thoroughly non-partisan, as Democrats began using it to outflank Republicans on crime. In 1992, Bill Clinton took a well-publicized detour from his presidential campaign to preside over the execution in Arkansas of Ricky Ray Rector, a black man with severe brain damage.

Yet a remarkable shift has occurred in the public and political climate. George Ryan, Republican governor of Illinois, declared a moratorium on executions last year. A few months later, New Hampshire voted to repeal its death penalty statute, only to have its Democratic governor, Jeanne Shaheen, veto the legislation. This year, every one of the 38 death penalty states but Kansas introduced bills to reform or curtail capital punishment. Texas and Florida—two states at the buckle of the “death belt”—actually passed legislation barring executions of the mentally retarded (though Gov. Rick Perry vetoed the Texas bill). Polls show public support for capital punishment at its lowest point in 20 years, with a majority of American voters favoring a temporary halt to executions while the issue receives further study, and substantial numbers amenable to replacing the death penalty with life in prison without parole.

Even the execution of Timothy McVeigh on June 11 offers a revealing litmus of the new atmosphere. Hollywood could not have produced a more compelling candidate for execution: a domestic terrorist, killer of babies, apparently sane and unremorseful. Yet remarkably, the drop in public support for capital punishment generally (whatever the sentiment about McVeigh individually) has held, a fact that suggests the public is not undifferentiating in its view of the issue. A few years ago, focused attention on such a notorious case would have decimated the opposition.

What accounts for the new climate, and what lessons can be drawn for advocates who wish to abolish the death penalty in this country? At least three factors seem to have bolstered the case for abolition, or at least serious reform.

INNOCENCE.
For years, the public took for granted that the system was fair. More than any other single factor, the discovery that dozens of people sentenced to death were actually innocent of the crimes charged has driven a wedge in public thinking about the accuracy and fairness of the death penalty. Since 1973, 96 men and women have been exonerated and released from death row. The advent of DNA testing in particular has given abolitionists a powerful political tool: irrefutable proof that the system is not failsafe. It was a critical mass of 13 exonerations in Illinois—more than the state had managed to execute since reinstating the penalty in the mid-1970s—that led Governor George Ryan to declare a moratorium pending further study.

Exonerations that came through many years of appeals, or through new investigation by cub journalists, have weakened the claim of proponents who have argued that justice must be not only harsh, but swift. They have also thrown a spotlight on the welter of due process flaws that make the system unreliable in the first place, and have given new credibility to complaints of unfairness long voiced by defense lawyers. Indeed, a study by Columbia University released last year shows that 68 percent of the more than 5,000 death sentences imposed since 1976 have been overturned for serious error implicating basic fairness, like incompetent counsel, prosecutorial and police misconduct, and judicial errors.

CONSERVATIVE CRITICISM.
The innocence cases have brought another, very useful dividend for abolitionists: conservative allies. In face of an ever-growing number of exonerations, even staunch proponents of the death penalty are questioning the fairness of the system. Conservatives like William Sessions, former FBI director, and columnist George Will have called for reforms to address shoddy legal counsel and lack of access to DNA; Pat Robertson and Jerry Falwell have criticized the clemency process as driven more by politics than mercy or merit. Most recently, Justice Sandra Day O’Connor has suggested that lack of good representation, among other things, has rendered the modern experiment with capital punishment deeply flawed. This criticism from both the Right and the Left has shuffled the political cards and made it easier for proponents of the death penalty in both parties to take a principled stance in favor of death penalty reforms or moratoria.

DOUBT AMONG THE VICTIM COMMUNITY.
A third factor is increasingly operative: the realization that victims do not uniformly support the death penalty. If the press coverage is to be believed, six years after the Oklahoma City bombing, a substantial number of survivors and family members would just as soon have seen McVeigh rot in prison for life. A national organization of victims opposed to the death penalty—Murder Victims’ Families for Reconciliation—has even incorporated to give support and voice to victims who seek alternatives. Indeed, MVFR’s slogan, “Not in My Name,” is a deliberate rejoinder to those who claim the death penalty is necessary to honor victims. The reasons for opposition among victim family members are as complex as the grieving process itself. For some, opposition arises out of a desire to focus on the needs of victims, not on the offender. “Everyone knows Tim McVeigh,” says Renny Cushing, director of MVFR. “But no one remembers the name of any of his victims.” One thing that many survivors agree on is that the death penalty does not bring the “closure” that prosecutors and politicians promise. As one Oklahoma survivor says, “you close on a house. You don’t close on a death.” More often than not, say victims, the protracted years of appeals and media attention that accompany a death sentence only force family members to relive the loss with every new court hearing.

A look at how the death penalty has fared internationally suggests that abolitionists have the wind of history at their backs: since 1970, over 80 nations have abolished the death penalty, including formerly totalitarian regimes like South Africa and Russia. President Bush was roundly booed (indeed mooned) by protestors during his European debut for his record on the death penalty, human rights, and the environment. And an illustrious array of bipartisan former U.S. ambassadors have politely suggested to the U.S. Supreme Court that the American practice of executing mentally retarded defendants is branding our nation as a international human rights violator, and harming our standing in international deliberations. Indeed, there is little question that the death penalty played a role in the United States’ ouster from the U.N. Human Rights Commission this spring.

Still, the new momentum against the death penalty in the United States could disappear as quickly as it came. Abolitionists face several challenges, none of them small. The first, paradoxically, is the sudden viability of legislative reform. For many years, state capitols were the place abolitionists most feared to tread: if the death penalty came up at all, it was likely to be a campaign to widen its use or reinstate it in the 12 states with no death statute. Abolitionists focused public education efforts elsewhere, organizing campaigns in schools and church basements around court proceedings or executions in high profile cases. Now, state anti-death penalty organizations, most of them volunteer-led, have to learn the ropes of the state legislative process on the fly.

A second challenge is funding. Death penalty abolition has trouble competing with a welter of social issues with more appealing beneficiaries. Although a few new foundations, encouraged by the opportunity to foster real change, are stepping in, new sources of funding must be found both in the United States as well as in Europe, where sentiment against capital punishment is far stronger.

A third is the difficulty of grassroots organizing on an issue as controversial and remote as the death penalty. To be sure, there are other, equally divisive issues like abortion, that have nonetheless mobilized thousands in grassroots movements for reform or retention. But a death row of 3,600 residents lacks the personal salience or immediacy of abortion, gun control, or even racial profiling—issues that affect hundreds of thousands of people. In an era where a million pairs of feet marching has become the benchmark of organizing “success,” the death penalty presents a special challenge for abolitionists seeking to build a constituent movement for change.

What can abolitionists do to make the death penalty go the way of slavery?

First, national anti-death penalty groups must shift their attention and resources to the states, where hope for concrete, immediate change resides. State organizers need financial resources and technical assistance to educate the public about the practical and moral case against capital punishment. The good news is that years of hard-scrabble organizing have created an infrastructure of local anti-death penalty groups in every state.

The anti-death penalty movement must also focus on recruiting new faces and spokespeople who can attest to the lack of utility and other harms of capital punishment. The victim-abolition movement is creating new spokespeople, like Bud Welch, father of Oklahoma bombing victim Julie Marie Welch. But abolitionists must also reach out to other unusual allies, like law enforcement, former corrections officials, and even religious evangelicals.

Fresh approaches to organizing are also needed. Abolitionists have long known that African-American communities are more wary of the death penalty than others. New styles of organizing, and more diverse ranks of advocates are needed. One good sign: An increasing number of young activists are joining the anti-death penalty movement as they make the connection between disinvestment in public schools, racial profiling, and profligate government spending on mass incarceration and the death penalty. These young people bring fresh energy and a more combative approach that favors ACT-UP-style direct action over candlelight vigils.

Finally, the heightened sensitivity to issues of fair-ness creates new opportunities for defense lawyers and activists to work together to expose and educate the public about fundamental problems of racism, class bias, and shoddy counsel that plague the prosecution of so many cases.

Even in the new climate, on an issue as politically volatile as capital punishment, abolitionists ought take nothing for granted. The movement requires a truly diverse strategy that speaks variously to liberals and libertarians, to racial minorities and the religiously minded, as well as to the vast middle of Americans who value fairness and justice, but are not quite sure about abolition. Embracing the pragmatic need not mean relinquishing the moral case against capital punishment. Indeed, there is a strong link between the new debate, which focuses almost entirely on practical application, and the moral claim. Not so long ago in this country, smoking in public was seen as an inalienable personal right. Few of us dared ask a neighbor on the bus or an office co-worker to take it outside. Yet after a 20-year public health campaign of aggressive restrictions on cigarettes, smokers have been thoroughly divested of the moral authority to force their choices on the rest of us. In similar fashion, the more capital punishment is limited, the more empowered are individual citizens to re-examine the assumption that state killings are a morally righteous or inevitable feature of civil society. Indeed, the fact that the death penalty—long a “no-go” issue in polite conversation—is being discussed around office water coolers is an important step forward. For the public debate emboldens those who might previously have feared being dismissed as “out of the mainstream,” and invests ordinary citizens with the right to question a sanction that for too long has been passed off as substantive justice.