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Abolitionism, Down for the Count

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Arkansas carried out two executions tonight, the first time that has happened in almost 20 years, as the Washington Post observes.  It executed another murderer a few days ago.

My sense of it is that this development may be remembered as the moment the movement to abolish the death penalty started back downhill after many years of gaining ground.  This is true, I think, whether or not Arkansas succeeds in executing a fourth killer on Thursday, something that now seems likely to happen.
The principal argument that's been working for abolitionists is not that we've been executing the innocent (we haven't), or that the death penalty is immoral even when used against the plainly guilty (a big majority believe it's morally sound), or that "advanced countries" don't use it (a view that has no resonance in America and wouldn't even if it were true).  No, the argument that has been working is that capital punishment is just too expensive, too cumbersome, and too delay-ridden to work.

When a relatively poor state like Arkansas can undertake three (or perhaps four) executions in the space of a few days, and do so over a mountain of last-minute appeals, delaying tactics, and dishonest claims impressive even by the usual Hall Mary standards of capital defense, that sends a message:

We can impose the death penalty and carry it out when we have the will, and we have the will.

There are a number of other factors, both specific to these executions and more generally to the national death penalty debate, that seem to me to auger poorly for abolitionism.

The factors specific to this case are:

--  The executions went off smoothly.  Despite copious dissembling about it by the defense, neutral observers in the press (and apparently the federal district judge as well) saw no exaggerated or needless suffering on the gurney.  The Post story I have linked notes this point.

--  The crimes were grotesque.  Much of the defense argument against the death penalty is that it's random.  But no one who read the accounts of the murders and violent rapes these prisoners committed is going to think there was anything random in their sentencing.  And, importantly, the press perforce gave descriptions of the crimes, albeit abbreviated ones.  The idea that death was a disproportionate punishment simply could not survive even a brief summary of what these men did  --  in one case, the killer beat an 11 year-old girl so savagely that the police, upon approaching the scene where her mother lay dead, at first mistook the daughter for dead as well.

--  The cascade of last-minute appeals exposed capital defense as just gaming the system.  The prisoners had each spent about 20 years on death row and had been afforded years of painstaking legal review essentially unmatched in the civilized world. Nonetheless, a bunch of grandstanding lawyers bullrushed the courts with throw-it-up-against-the-wall appeals chock full of claims that were either false or waived or previously rejected as legally meritless.  It became clear to all but the most biased that the appeals were taken simply to run out the clock on the execution drugs.

Normal people want capital defendants to be given full due process and a fair shake. They don't want the courts turned into a circus.

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As to the general features that seem to me to mark a turning point in the death penalty debate:

--  The deciding vote of the Supreme Court's youngest Justice, Neil Gorsuch. That, combined with the prospect that President Trump will appoint more jurists to fill possibly three seats  --  two held by abolitionists (Justice Breyer and Justice Ginsburg) and one by the often unpredictable Justice Kennedy  --  very likely marks the end of any realistic possibility that the Court will, in the foreseeable future, eliminate the death penalty, or even tolerate much more of the guerrilla war against it.

--  The startling increase in the murder rate, now underway in our country for about two and a half years.  Soft on crime measures tend to get traction in times of low and decreasing crime, which breed complacency.  Murder is still low by the standards of the last half century, but is rising rapidly.  Complacency is coming to an end.

--  The picking of the low-hanging fruit in liberal states.  It's often noted that six states have abolished capital punishment in recent years.  What's noted less often is the other side of that coin:  that the states possibly amenable to abolition have now made their move.

--  The California death penalty initiative.  Due in great part to the work of CJLF and Kent Scheidegger in particular, six months ago the voters in very blue California rejected a referendum to abolish the death penalty.  They did so by a whopping 836,000 votes.  This was 350,000 more votes than the margin of defeat for a similar abolition initiative four years earlier.

If abolitionism is losing ground in California, it's losing ground everywhere.  And now, with the successful executions in Arkansas, the momentum of its loss will accelerate.

18 Comments

Bill, I do not dispute much of your analysis here (unlike your peculiar and seemingly unprecedented approach to the federal recusal statute). But I wonder if you think it notable or at all problematic that Attorney General Sessions has not discussed getting the federal capital system moving nor helping states get access to execution drugs in all his talk about dealing with violent crime in the US.

As crime was increasing the the 1980s and was high in the 1990s, even Democrats where making much of the need to increase and speed executions. But, surprisingly, AG Sessions and GOP leaders in Congress have not said anything about the need to have more death sentences and more executions as a response to murder increases. That surprisingly reality has me to conclude that, in some important respects, the movement to abolish the death penalty has already secured some very important and likely enduring victories.

Perhaps a big speech on the DP is forthcoming from AG Sessions or Senator Cotton (from AK) or others who are eager to champion the "tough on crime" cause. But, until they do, I think the abolitionists can and should still claim a significant victory in the form of these important national/federal voices not actively promoting capital punishment the way in which Bill Clinton regularly did a mere 20 years ago.

If abolitionists want to claim victory because Attorney General Sessions, now in Office for a full 76 days -- and having immediately to deal with problems of massive illegal immigration and the exploding heroin/fentanyl crisis -- has not turned to the extremely small number of FEDERAL capital prosecutions, then all I can say is: Have a great victory party!

But have it fast, because the Attorney General, like the great majority of Americans, is a long-time supporter of the death penalty. I doubt you'll have to wait long before he'll have something to say about it.

P.S. Your percipient abilities seem to exceed mine, because, although I've looked and looked and looked, I can't find a single abolitionist who views either last night or any part of Jeff Sessions as a "victory."

I think you missed my point, Bill, perhaps because I did not state it well. Let me try again:

Not all that long ago, both Rs and Ds saw the political advantage of championing support for the death penalty and seeking reforms to speed executions. In part because of this political consensus in favor of capital punishment and its more serious administration, back in 1999 we saw a modern high-water mark of nearly 100 executions and nearly 300 death sentences.

Fast forward only 17 years, and we see in 2016 only 20 executions and only 30 death sentences. This 80% reduction in executions and 90% reduction in death sentences strikes me as a remarkable achievement by abolitionists given that they do not have the majority of the public on their side even in blue states like California.

Moreover, as to the main point I was trying to make, even as shrew politicians like Prez Trump and AG Sessions see the continued benefits of "tough on crime" talk/advocacy during a time of increased violent crime, there has been almost no discussion or complaints from anyone in power of the massive modern reduction in executions and death sentences and no aggressive talk by Prez Trump and AG Sessions of the need to get back to Clinton era levels of executions and death sentences.

My point is that abolitionists have achieved a very considerable sea change in the culture and climate of capital punishment discussions among politicians and policy-makers. (Since I wrote my comment, another telling example of this sea change has emerged: a commission in the very red state of Oklahoma has called for a continued moratorium on executions in that state: http://sentencing.typepad.com/sentencing_law_and_policy/2017/04/oklahoma-commission-recommends-continued-moratorium-on-executions-due-to-volume-and-seriousness-of-t.html)

Critically, as I said at the outset, I do not disagree with your generally analysis -- -namely that what might have been a march toward national abolition has been thwarted by Trump's election, Gorsuch's appointment, the result in California, and other similar developments. But, whether measured in raw numbers of executions/death sentences or in the rhetoric of policians now as compared to 20 years ago, it still seems opponents of the death penalty have a whole lot more objectively to celebrate than supporters. And, given that opponents of the death penalty are bucking public opinion, that still strikes me as a remarkable reality.

The death penalty in America was on life-support. It's better, but it's long-term health is in question.

Doug and federalist pose worthwhile questions about the longer term history of support (or less support) for the death penalty, and its future prospects.

The questions are so interesting that I'm planning on taking them on is a separate entry. I think they go to the heart of much that we discuss on C&C.

Douglas stated: "Not all that long ago, both Rs and Ds saw the political advantage of championing support for the death penalty and seeking reforms to speed executions. In part because of this political consensus in favor of capital punishment and its more serious administration, back in 1999 we saw a modern high-water mark of nearly 100 executions and nearly 300 death sentences."

A couple of points.

First, it is intuitive that the DP would not be a major an issue in times of low crime. It has only begun to rise over the last half decade from historical lows and an aggressive call for the DP is a lagging indicator. As more Wendell Callahans strike, people will eventually pay attention.

Second, the Dems have taken advantage of the low crime rate and done what they have done with every other issue, go far left and be damned the electoral consequences. It probably has hurt them on the margins and will hurt them more as the crime rate increases. There is no Dem support for the DP because there are no mainstream Dems anymore. They have been run out of the party and are paying the electoral consequences nationally and at the state level.

In other words, the lack of Dem DP support is not a "victory" unless you define it as hitting an iceberg.

Federalist stated: "The death penalty in America was on life-support. It's better, but it's long-term health is in question."

Even in times of historical low crime, it had the support of 2/3+ of the electorate. That's pretty darn healthy.

The Dems will only ever manage small victories based on low crime. Once they get their way and crime increases, the support will increase along with the intensity of support (the real issue).

The pendulum swings.

Only SCOTUS could ever kill it.

Federalist stated: "The death penalty in America was on life-support. It's better, but it's long-term health is in question."

Even in times of historical low crime, it had the support of 2/3+ of the electorate. That's pretty darn healthy.

The Dems will only ever manage small victories based on low crime. Once they get their way and crime increases, the support will increase along with the intensity of support (the real issue).

The pendulum swings.

Only SCOTUS could ever kill it.

I do not disagree with your analysis on the Dem side, Tarls, but my chief point/interest is the lack of discussion of these matters on the GOP side even as we see AG Sessions and Prez Trump and others talk up a law-and-order agenda.

There is a whole lot that a GOP Prez and GOP AG and GOP Congress could (and I think should) be doing to help states carry out existing death sentences. At last count there are still close to 3000 death sentence, meaning we'd need to get back up to 100 execution per year just to get through the backlog before Baron Trump is ready to take on Charlotte Clinton in the epic 2052 campaign.

The states need help getting execution drugs needed drugs. GOP leaders can also help get states certified for AEDPA fast-track (and revise AEDPA as needed). And, of course, there are 60+ very bad killers on federal death row, some of whom have been there for 20+ years. The Bush Administration was shameful on this front, and I hope Trump does better.

One of the strongest reasons why I generally support the death penalty is because it is what Americans clearly want (that is also one of the strongest reasons for my support of marijuana reform). Given that political reality, I am both surprised and disappointed that GOP leadership and GOP rank-and-file are content to be losing so many battles here without aggressively fighting back. And again, my main point is that while Trump and Sessions seem so eager and able to fight back so hard on so many other issues, on this one we have yet to hear a peep from them. The contrast even with Bill Clinton is telling, and the point I mean to be primarily stressing.

That is where intensity comes into play, in my opinion.

Like Bill, I'm not too concerned about Trump and Sessions. It has been 100 days and there are larger issue.

As far as the GOP base, the support is there but the intensity to get things done is not during this time of still relatively low crime. When you see "crime" listed higher in those polls of voters' "most important issues", you will see voter intensity and then the politicians will follow behind.

I see it analogous to the border. Trump did not bring it up first, he was the first to tap into how angry people were that at the border situation. It carried him through the primaries. Kate Steinle, Brian Terry, etc. get people angry and Trump saw it.

The Dems, to their detriment, ignore it.

Good points, Tarls, and maybe my point/concern relates to why there isn't more intensity from the GOP leaders or the base on this front. Thousands of condemned murderers, tens of thousands of family members of slain victims and hundreds of millions of dollars are getting tied up in the thwarting of executions. That used to get folks on both sides of the aisle angry, but seemingly not so much anymore.

Every more importantly, if you believe the deterrence literature that suggest every execution may save between 2 to 10 innocent lives, the growing carnage of increased murder might be linked to the recent precipitous decline in executions.

I get that politically stuff like travel bans and walls and sanctuary cities plays better these days. And that is why I am suggesting the abolitionists are winning the long game --- no longer is there the intensity for making capital punishment "work" even though the conditions and personnel would seem to be in place for a big capital push.

"Thousands of condemned murderers, tens of thousands of family members of slain victims and hundreds of millions of dollars are getting tied up in the thwarting of executions."

Then I hope you will use you considerable influence with abolitionists and abolitionist allies to bring the dilatory, throw-it-up-against-the-wall thwarting -- thwarting that almost never concerns factual guilt -- to stop. Will you?

I might add that Republican forces, led by Gov. Ricketts, did in fact fight the thwarting, to say the least, of the death penalty in Nebraska.

I contributed several hundred dollars to this (successful) effort.

Did you?

Bill:

1. The only political contributions I make are to former students, and then only if/when they ask. I do this for professional/personal reasons, not political ones. One of many reasons I am not a big fan of the functioning on US democracy --- and thus do not invest in it --- is because we do not have mandatory voting (and I also think the voting age set is too high).

2. As Kent can report based on our time on a panel at Northwestern, I have little to no "influence with abolitionists and abolitionist allies" because I fail to consistently and aggressively condemn the death penalty. I have been preaching for nearly two decades that "abolitionists and abolitionist allies" should spend a lot less time worried about a few hundred guilty murderers on death row and spend a lot more time worried about non-violent LWOPers others too severely punished for less serious crimes. They have not listened to me before, and I doubt they will listen to me now.

Here is another case that should be highlighted:

http://nbc4i.com/2017/04/27/inmate-assaults-kills-female-north-carolina-corrections-officer/

"North Carolina state prison officer died Wednesday after being assaulted by an inmate.

Sgt. Megan Lee Callahan, 29, of Edenton, was attacked around 5:30 p.m. at Bertie Correctional Institute, and died about 6:20 p.m., officials said.

Authorities are investigating Craig Wissink in connection with her death, officials said. Wissink has been in prison for more than a decade after being convicted of first-degree murder in Cumberland County and sentenced to life in prison."

The previous crime for this wonderful human being: "The evidence at trial tended to show that around 10:00 p.m. on 27 June 2000, two individuals knocked on the door of a trailer belonging to Jonathan Pruey (Pruey).   As Pruey approached the door, the individuals opened the door from outside.   Pruey and his roommate, Corrie Cordier (Cordier), attempted to close the door.   One of the individuals, who was wearing a Halloween hockey mask, fell in through the door.   Cordier “stomped down” on the individual's face and Pruey slammed the door shut, bracing himself against it.   A few seconds later, Cordier heard a loud noise, a moan, someone stumbling in the living room, and then the sound of someone hitting the floor.   Pruey's wife and another roommate turned on the lights and saw Pruey lying on his back on the kitchen floor.   Pruey was losing a large amount of blood from his chest and mouth."

http://caselaw.findlaw.com/nc-court-of-appeals/1485812.html

Cases like this will make abolitionism highly unpopular.

North Carolina has not had an execution in more than a decade, despite now having nearly 150 murderers on death row and considerable support for the death penalty among voters. Seems like abolitionists have been winning big for over a decade in NC, and I fear that means Craig Wissink will essentially/functionally escape any additional punishment for his latest murder.

I would love to see Trump and Sessions and Congress find a way to make those who murder guards in prison while serving LWOP moved to the very front of the line for execution. I think it could be done with a little clever legislation, but I am not holding my breath.

Wouldn't this be a state and not federal issue? I hate the federal government always oozing into state issues, even if I do agree with the cause.

First, Tarls, the feds could help the states get execution drugs so that they can carry out death sentences.

Second, the feds incentivize the states to operate their CJ systems certain ways all the time. Sex offender registries are one big recent example. But I share your general inherent disaffinity for the feds telling states how to run their criminal justice systems, and so your point it well taken.

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