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Lithwick Article

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This article by Dahlia Lithwick in the Washington Post has been drawing raspberries around the blogosphere. See Ed Whelan and NRO Bench Memos and Volokh Conspirators Jonathan Adler and Orin Kerr.

Lithwick's thesis is that the Supreme Court is turning in favor of the death penalty just as the public is turning against it. Most of the adverse commentary deals with her discussion of the Supreme Court. But her discussion of public opinion is also dubious. Her analysis of the Gallup Poll data appears to just be reciting the DPIC spin. As noted here, the poll data actually show steady support. Temporary pauses in executions to deal with the lethal injection challenges do not imply any kind of permanent shift against the death penalty generally.

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To paraphrase Mark Twain, reports of the death of the death penalty have always been greatly exaggerated.

Three times during the 20th century there were significant movements to abolish the death penalty and, of course, they all failed.

Besides the polling data current sentiment also has to be viewed as well in terms of other events such as the recent popular vote in favor of the death penalty in Wisconsin (a long time abolitionst state), multi state proposals to expand eligibility factors for the death penalty, death penalty jury verdicts in federal prosecutions in states such as New York and North Dakota, and a serious death penalty prosecution in New Hampshire. Scalia's concurrence in Kansas v. Marsh should be viewed for what it really was--a public challenge, at long last, to the "conventional wisdom" about the issue of exonerations and the death penalty.

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