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The Death Penalty Teleforum Debate with Prof. Steiker

I do not yet have a link to the full recording of yesterday's teleforum debate about the impact of the recent elections on the future of the death penalty.  In the interim, I want to post what I wrote out for my opening statement.

As Kent noted in following up, one of the central questions in this discussion is:  Who gets to decide the issue?  In a matter of this moral gravity, should ordinary voters have a chance to decide for themselves (as they did in Nebraska, Oklahoma and California), or should the decision be reserved to the ruling classes?

I addressed that in my opening remarks, as you can see after the break.

I'm tempted to say that the recent election was the moment when opposition to the death penalty shipwrecked, but I think it's more accurate to say it's merely when the shipwreck became visible. Opposition to capital punishment had been in trouble for some time, first because it had already picked the low-hanging fruit in the more liberal states, and second because outside events have made abolition under all circumstances an unpalatable position.

On the election front, probably the first thing to note is that both major party candidates explicitly favored the death penalty  --  Sec. Clinton with reservations,  Donald Trump with enthusiasm.  Only minor party candidates opposed it, and they wound up with a negligible share of the vote even while running against the two most unpopular major party candidates in the history of polling.  

It's also noteworthy that both parties' Supreme Court selections were (and are) very likely to support the Court's most recent holding, in Glossip v. Gross, that the death penalty is constitutional.  Judge Garland, as Deputy Attorney General, oversaw  Timothy McVeigh's capital prosecution, and Judge Gorsuch has given no indication in the ten years he has been on the bench that he finds any problem with the capital punishment, either in constitutional or policy terms. It may be particularly relevant to today's discussion of the election that, in a National Review article Judge Gorsuch wrote in 2005. he said:

American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.   

If, as seems likely with Judge Gorsuch joining the  Court, the future of  the death penalty is to be left to the ballot box, then the recent election is indeed the image of a shipwreck for abolitionism, which lost everywhere it could, and  by wide margins.

Capital punishment was on the ballot in three states.  That the results overwhelmingly supported it in Nebraska and Oklahoma is hardly surprising, but the result in California was, so it seems to me, Armagedon for abolitionists.  While Golden State voters were giving Sec. Clinton a majority of 4.3 million ballots, and easily adopting a number of criminal justice reform provisions, they defeated an abolition measure by 850,000 votes.  This margin was 75% higher than the margin an abolition referendum had lost by four years earlier.  At the same time, California voters narrowly approved a measure to speed up executions.

When abolitionism is losing in the more liberal candidate's strongest state, and losing by a margin substantially greater than the one it lost by four years earlier, it's hard to see the 2016 election as anything but the end of road or something very much like it.

I started out by saying that I thought this had come about in part because of outside forces, and I want to close by pointing to three of them.

The first was the same reaction so many pundits missed in underestimating Trump:  A resentment among ordinary people with the scorn and condescension of those who run the culture.  For years, the predominant theme in academia and entertainment has been that support for the death penalty is at best a retrograde position and at worst a barbaric one.  But, I suspect, the American people, who have supported the death penalty by 60% or more for more than 40 years, are tired of being told they're uncivilized  --  something that is, among its numerous other defects, false.

Second, there have been recent well publicized episodes that make complete abandonment of the death penalty seem an excessive remedy for its problems.  When we see an ISIS terrorist on tape slicing off the head of a helpless hostage; a college student at the Boston Marathon dropping a pressure cooker bomb to obliterate an eight year-old boy; and Dylann Roof gunning down nine worshipers in a church for no reason but racial hate, the idea that we should NEVER impose the death penalty simply becomes implausible to most people.

Finally, in the two years preceding the election, the country saw something it had not seen in decades:  A sharp increase in the murder rate.  It's often pointed out that support for capital punishment has fallen significantly from the early Ninties, and this is true.  What is pointed out less frequently is that the murder rate fell significantly during those same two decades.

When the problem is severe,  people will support a more severe remedy.  The death penalty IS a severe remedy, and no normal person takes any pleasure in its imposition.  For roughly the last 20 years, support for it fell, yes  --  along with the perceived need for it.  But if the murder rate continues to increase as it is doing now, and to a shocking degree in cities like Chicago, St. Louis and Baltimore, the pro-death penalty trend that showed itself in California three months ago will very likely go nationwide.



No, I missed that. Thanks for pointing it out.

We are sewing what we reaped in the second Obama term, when he knew he wouldn't have to face the voters again. "Community involvement" and all that. I hope the "compassionate" folks out there are enjoying their handiwork. The only place the community is more involved is at the morgue.

Hello - I am interested to hear the complete discussion. Please do post a link to the discussion as it becomes available - thank you!

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