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The Death Penalty Is Dying..........Oh............Wait.........

No matter what happens, we can count on the hilariously named "Death Penalty Information Center" to come up with some story telling us that the "death penalty is dying."  This happens so often that I don't keep track of it anymore.  It's usually based on some survey it has paid for, or on a press release from an allied group like Amnesty International, or, of late, on the assertion that the number of executions in any given year was less than the year before.

They'll have to use something else this year.  With tonight's execution of Manuel Pardo for not fewer than nine murders, the number of persons executed this year (43) equals the number executed last year.  There might be one or two more executions to come this year, but I don't know that.  Even if one is scheduled, it can always be postponed based on the killer's sudden discovery that he has the IQ of a carrot. 

The DPIC's own figures put the lie to the claim that, over the last few years, executions are fading away.  The 43 executions this year are equal to the 43 last year, slightly less than the 46 in 2010 and 52 in 2009, but slightly more than the 37 in 2008 and the 42 in 2007.  If anything is dying  --  or at least badly crippled  --  it's not the death penalty, but the opposition to it.


I take a different view. The death penalty, while not on life support, is slowly dying in America. I won't rehash what I've said in previous comments, but when those of us who believe in capital punishment are pointing to the execution of a guy who murdered nine people 26 or so years after the fact as evidence of the death penalty's strength, I think that's evidence of the death penalty's weakness. If "getting to death"--to borrow a phrase--for a monster like Pardo takes this long, then the viability of the death penalty is certainly questionable.

The problem, I think, is two-fold. One, although the death penalty continues to enjoy strong support, the true-believers in abolition are far more vehement. Two, the judiciary itself is turning against the death penalty. That the Supreme Court has tolerated (or even imposed) stays for utterly ridiculous reasons tells you all you need to know about where the judiciary lies on this issue and its lack of fear of the judiciary of the political reaction to its strangling of the death penalty.

Additionally, as cruel as it is to victims' families, President Obama and his corrupt AG have paid zero political price for allowing some federal judge to thwart the federal death penalty. It is deeply immoral, of course, to put these families through this long wait. No one utters a peep about it.

There is one side benefit to all of this---since opposition to the death penalty is so fashionable, marginal talents hacks like Justice Sotomayor often rise to the bait. She was willing to clown herself for the sake of a brutal Kentucky murderer. Obviously, no one in academia will take her silly opinion in Hodge v. Kentucky as evidence that she really is a dim bulb, but it is worth a chuckle or two to see a liberal Supreme Court Justice prove false the over the top paeans to her supposed abilities.

I hear what you're saying, and share many of your thoughts. But let me explore the other side of the case.

It's quite true that taking 26 years to execute Pardo is a scandal. But that sort of delay is very atypical. The average delay is now half that -- roughly 12 or 13 years. That too is a scandal in my view, but it has a silver lining, as do many of the "losses" the retentionist side has taken in the last few years.

Here's why: The abolitionists are slowly becoming victims of their own success. They have succeeded in cutting back the DP, most significantly in Atkins, Roper, and Kennedy v. Louisiana. But these were all in areas where the death penalty's support was at its weakest. By trimming away the possibilty that the DP will be imposed on anyone less than 18, on the mentally ill, and on those convicted of non-homicide offenses, the SCOTUS has taken away some of abolitioinism's most appealing arguments. It is left with the notion that we're routinely executing innocent people, which justifiably almost nobody believes, and that the DP simply costs too much, an argument that met its fate when Prop 34 went down in a state where the DP is both as dysfuntional AND as expensive as anywhere. The reason it went down isn't that hard to understand, and will persist: Normal people don't think that justice in the most searing, grotesque and heartbreaking cases should come down to dollars and cents.

In other words, abolitionism has been reduced to making arguments so unappealing that their chances of prevailing going forward have been shrunk.

What HAS happened is that abolitionists have scored some legislative victories, for example in New Jersey, New Mexico, Illinois and Connecticut, but the victories -- though relentlessly hyped in the media -- are almost completely hollow. First, they were secured in blue states between 2006 and 2010, when Democrats were at their high water mark. As the electoral calculus has swung back to its more typical historical balance, abolitionist momentum has slowed considerably, if it hasn't disappeared.

Second and even more important, these legislative victories merely ratified the long-running status quo in those states. In a word, they abolished the death penalty in jurisdictions where, for any practical purpose, it didn't exist anyway. In the preceding 10 years, exactly one person (Michael Ross, a Connecticut "volunteer") had been executed in all four states. "Abolishing" something that's not there would be laughed at as a supposed sign of "victory" -- it would be laughed at, that is, if the mainstream press weren't looking for ways to gild the abolitionist lily.

In other words, the terrain upon which abolitionism may now wage its campaign has become more narrow for it and more favorable for us.

I'll continue to explore this later on, but wanted to respond promptly to your quite understandable misgivings.

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