Florida and California today suspended the death penalty due to problems with the lethal injection process. In Florida, the lethal injection took twice as long to execute convicted murderer Angel Nieves Diaz, and in California, a US Federal judge ruled that recent botched executions suggest that the state’s lethal injection system violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
It is an understatement to say that I am heartened by these developments. I will defend and apologize for many of the “quirky” elements of American culture that puzzle Europeans – the religiosity, the bellicosity, the excessive materialism, etc. But I will never apologize for America’s lingering usage of the death penalty. Capital punishment forces America to wear a badge of shame shared only by the likes of China, Iran and Saudi Arabia. It is arbitrary (there is no predictability in the prosecution or sentencing stage with respect to who gets a death sentence and ultimately dies and who does not), racist (much stronger with respect to the race of the victim, not the perpetrator; in short, kill a white person, face the death penalty; kill a black person, no prosecutor will bother to push for the death penalty), hypocritical (killing those who kill people demonstrates that killing people is wrong?), vengeance disguised as justice, costly (with appeals necessary to protect the innocent from execution, capital punishment is far costlier than life imprisonment), culturally degrading, useless as a deterrent (life without parole is just as effective) and downright, dare I say, uncivilized.
Public opinion on capital punishment goes in waves. In 1966, about 60% of Americans supported the death penalty. After the great crime wave of the 1970s and 1980s, Americans in the early 1990s supported the death penalty at rates approaching 86%. States that had long abandoned capital punishment, like Kansas and New York, reintroduced it in the mid-1990s. Politicians in both parties rushed to “expedite” the execution process. Elected prosecutors and judges threw caution to the wind and streamlined the road to the chair. No state more infamously increased its execution rate than Texas – especially under Governor George W. Bush. But Democrats, like New Hampshire Governor Jeanne Shaheen, shamelessly vetoed abolition bills for fear of looking weak on crime.
Things started to change in the late 1990s. First of all, crime dropped. This was mostly because the crack epidemic ran its course. Other causes of this drop were a better economy, more effective policing (both “conservative” broken window policing and “liberal” community policing), life-without-parole sentencing laws that meant true life imprisonment for murderers, and better neighborhood activism against crime. The fastest drop in murder occurred in New York where not a single person was executed (the state’s 1995 death penalty law was never actually used to execute a single prisoner); the death penalty played no role in the drop in crime. But the drop in crime may the public call for executions simmer quite a bit. Death penalty support – in theory – has now fallen back to around 70%. When placed up against life without parole, it’s fallen under 50%.
Then came all the DNA cases in Virginia and Texas and elsewhere, showing that an innocent prisoner was about to go to the gurney. No state witnessed a more catastrophic breakdown in its death penalty system than Illinois, where a group of intrepid Northwestern University Journalism School students tracked down dozens of death penalty cases and concluded that 17 people facing execution were downright innocent. They were on death row because corrupt prosecutors of both parties (Republicans in DuPage and Democrats in Cook) railroaded prisoners to death row based on fradulent and coerced testimony. The moment of truth came in 2002 when George Ryan commuted every single death sentence to life without parole. It was an act of courage for a man facing certain legal troubles of his for corruption. Perhaps he looked in the mirror and said, “If I can fudge the law for my own gain, surely a prosecutor or judge can too. We can’t put matters of life and death in the hands of politicians anymore.” Who knows if he was driven by such actual moral concern, but one can imagine.
The reaction to the Illinois commutation was fascinating. Some death penalty opponents quaked that Ryan’s commutation would provoke a pro-death penalty backlash. But nothing of the sort happened. Virginia seriously considered a moratorium. In 2005, it elected an open opponent of capital punishment to the Governorship. Maryland went through with a moratorium. Texas finally created a life-without-parole law, knowing that this would result in a dramatic drop in death sentencing. And now Florida, one of the nation’s top executioners, and California, the nation’s largest state, has joined in the campaign to stop – or at least temporarily halt – the death penalty.
Note that each state did this for different reasons. Illinois because of DNA and error. Maryland because of racial discrimination. Florida and California because of the cruel nature of botched executions. All of this goes to show just how many ways the death penalty system fails modern notions of justice.
I don’t know what will ultimately come of these latest moratoria. I suspect Florida will go right back to the execution line. But I could easily see California abolishing it outright. The days of railing against Judge Rose Bird are long past. Politicians – even in the South – no longer brag or complain about the death penalty. Christian conservatives like Pat Robertson and Jerry Falwell have come out for a national moratorium on capital punishment. And, perhaps the most powerful moral force of all – the Catholic Church – has finally started to puts muscle behind opposition to the death penalty as much as it has opposition to abortion. Conscientious Christians – theologically liberal and conservative – are starting to agree upon the moral depravity of capital punishment.
I take these actions – by Governor Jeb Bush in Florida and Judge Jeremy Fogel – as a sign that this country may be ready to start doing away with this great black mark upon our civilization. I make no apologies for saying that this would be one of the most encouraging moral developments in my lifetime.