Will the death penalty ever be abolished in America? Executions, and the states that carry them out, are in decline. Public support for the death penalty, though still high, has been falling. Many abolitionists are hopeful that the end of the death penalty in the U.S. is nigh. The horribly botched execution of Clayton D. Lockett in Oklahoma in April even brought President Obama into the picture. He called the incident "deeply disturbing" and ordered a policy review.
But the president did not ask the Justice Department to look at the death penalty as a matter of principle. Rather, the department is to conduct a narrower review of how (rather than why) the death penalty is applied in the United States. The president was also careful to add: "There are certain circumstances in which a crime is so terrible that the application of the death penalty may be appropriate — mass killings, the killings of children."
The president's intervention, though cautious, is not insignificant. The last time the death penalty issue played a role in presidential politics was in 1988. Michael Dukakis' unemotional answer to a lurid question as to whether he'd support the death penalty if his wife were raped and murdered helped lead to his loss to George H.W. Bush. Since then, no presidential candidate has dared take an anti-death penalty position.
Some abolitionists believe that Lockett's sordid death will one day be remembered as the death blow — as it were — to capital punishment. I am more skeptical. As long as the debate is about gruesome methods and individual cases, the death penalty as an institution may rise and decline but I fear it won't be definitively abolished. Activists have powerful arguments when they highlight the inhumane killing techniques, botched executions, the executions of people later believed to have been innocent, the egregious racial biases in the application of the death penalty, and the evidence that executions do not deter violent crime. But those arguments will not lead to abolition.
For that to happen, abolitionists and political leaders will have to speak about the death penalty in the clear language of moral principle. It is much more palatable to be against executions when the executed is innocent or had an unfair trial or is mentally unfit. It is more difficult to oppose the death penalty when the executed has committed heinous crimes and the method of execution seems painless.
Yet opposing the execution of even the cruelest murderers by methods that disturb us the least is the test we must pass if we are ever to become free of this peculiar institution.
The death penalty in America has a convoluted history. Its fortunes have always been linked to the prevailing political winds. Contrary to what many might think, it has not always been a national mainstay. In the 1950s and '60s, capital punishment sunk to unprecedentedly low levels of popularity. Between 1968 and 1976, not a single person was executed in the United States. In 1972, the Supreme Court even placed a moratorium on the death penalty, citing the 8th Amendment's language about "cruel and unusual punishment" and contending that the death penalty, as applied then, did not meet our "evolving standards of decency."
In so deciding, the court was following public opinion. Many abolitionists today cite the decline in public support for executions as grounds for their increased optimism that the court will again declare the death penalty unconstitutional. But the Constitution is an endlessly debated document, and public opinion is fickle. In 1976, after a rise in support for executions, the high court brought the death penalty back. In Utah in 1977, Gary Gilmore was the first American executed in a decade. In the subsequent 30 years, executions have made a stunning comeback in American life.
During this same period, the death penalty was abolished in many nations. One of the last Western countries to do so was France, in 1981. In France, as in the U.S. today, the death penalty enjoyed general support. What brought about the end of the death penalty in France was a top-down approach. Then-President Francois Mitterrand made abolition of capital punishment one of his priorities and persuaded legislators to pass a law to that effect. Such an approach seems almost inconceivable in today's America, yet it may be the only way for abolition to triumph here.
The issue in France, and later in the European Union, was framed as a moral concern for society as a whole. The death penalty was considered incompatible with the basic principles of human rights.
Oddly, in the United States, despite the prevalence of human rights talk and a heightened awareness of human rights abuses committed abroad, the death penalty has not been seen as a human rights issue. Rather, it has been treated primarily as a matter for the states, with the goal, for the most part, to reform the death penalty rather than abolish it. Like Obama, many of us still make distinctions between those who deserve to be executed and those who do not, or between less and more humane ways to kill.
What abolitionists need to do is call for change to emanate from the very top. The president (whether the current one or a future one) will need to express a principled opposition to the death penalty in terms of the sanctity of human life and dignity.
Here I see some room for guarded optimism. Obama does not need to worry about his political future. This could be the moment for him to take a stand against capital punishment, the way he did on gay marriage. But he will probably not do this on his own; public pressure is the key.
Those of us horrified by the death penalty should not look to the courts or the states. We must look toward our national leaders and demand that they do what is right.