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On the Death Penalty, Truth Spars with Arrogance

Longtime death penalty abolitionist Prof. Austin Sarat has written an essay admitting what many of us have known for years:  The electorate favors the death penalty and it's not that close.  If the electorate's will is to be honored, we will keep it.  The obvious corollary is that, if it is to be ended, electoral will must be overcome.

I thought part of Prof. Sarat's essay was unusually frank.  It notes that, in deep blue California, voters last year passed Prop 66, which

...designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals - all in an effort to speed up executions....

At the same time they approved Proposition 66, California voters also defeated Proposition 62, a measure that would have ended the death penalty for murder and replaced it with life in prison without parole.

Two-thirds of Oklahoma voters supported State Question 776 in November. That question declared that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution." It opened the way for Oklahoma to employ the gas chamber, electrocution or the firing squad if lethal injection is declared unconstitutional or is "otherwise unavailable."

The Nebraska electorate, by a margin of 61 percent to 39 percent, reinstated the death penalty just one year after state legislators voted to abolish it.

But the most candid admission comes after that.

The essay acknowledges:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once. From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America's tough-on-crime, law-and-order era....

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let's consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back - only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

Translation:  When the death penalty actually appears on the ballot, it wins.  It wins in conservative times and liberal ones, conservative states and liberal ones, when progressivism is in and when it's out.

So what is to be done?

Prof. Sarat has the answer:  Our Betters need to take the reins and put Us People with Big Hair and other Assorted Trailer Park Trash in our place.

Scholars like Yale law professor James Whitman say the effort to eliminate the death penalty pits elites against the will of the people. The history of death penalty referenda would seem to support that conclusion.

Yup.  If you did no more than finish high school, or went to a community college, or even graduated from State U., you'd better get your mind  --  such of it as there is  -- right, and genuflect before Yale Law professors.

Do these people even hear themselves?

But democracy is not the same as government by popularity contest or by plebiscite. It is a system of government grounded in principles of respect for equality and the dignity of all citizens. Any time an electoral action violates those principles, it damages democracy.

That is what our history teaches. The United States almost certainly would not have ended slavery or given women the right to vote if those issues had been decided at the ballot box.

No citation or link is provided for this rank speculation, which is conveniently incapable of proof, and, in my (Stanford/Georgetown) opinion, false.

And neither will this country abolish the death penalty in that manner. Following the European example, it will do so only when politicians and judges conclude that democratic nations cannot put their own citizens to death and still be true to their own principles.

That's it!  The problem is that the United States is not more like the home of Anders Breivik, mass killer of about 70 defenseless teenagers, currently being fawned over by morally advanced Europe.

Recently, former New Mexico Governor Bill Richardson, who once carried out executions but now opposes capital punishment, wrote of his worry about what he called "America's isolation on this critical human rights issue." 

The proposition that America is isolated in its support for, and use of, the death penalty is a point-blank lie and may well be racist to boot.  Capital punishment is not used in (white) Europe, (white) Australia and (white) Canada.  But it's used in most of the rest of the world, including China, Japan, India, Indonesia, the Middle East, the Caribbean, and most of Africa.

Why is it that Prof. Sarat considers the United States "isolated" when it's in agreement with most of the rest of the human race  --  but a portion that happens to have skin that's yellow or swarthy or brown or black?  Or where the major religions are Islam and Hindu rather than Christianity and Judaism?

Don't get me wrong:  I don't know if Prof. Sarat is a racist and, for present purposes, I don't care.  But I would prefer it if he understood it that the death penalty rises or falls on its merits, which his essay never mentions, and not on which nations or races tend to have it or tend not to.

I believe [former New Mexico Gov. Bill] Richardson got it right when he concluded, "To effectively represent the interests of citizens, and protect our nation's role as a global leader, a new generation of policymakers and politicians must put the death penalty to rest once and for all."...Richardson's  view is not antidemocratic. It is that of a citizen who knows full well the damage the death penalty does to the values that make our democracy strong.

So let me ask this in plain language, with apologies in advance for my directness:  Just who the hell are Bill Richardson and Austin Sarat to decide for the rest of us what "values make our democracy strong?"

Are they smarter than we are?  Wiser?  More moral?  Are they smarter, wiser and more moral than George Washington, Abraham Lincoln, FDR, Felix Frankfurter and Antonin Scalia?  Or Lewis Powell, Sandra Day O'Connor, Ronald Reagan and Barack Obama?

Academia is swarming with belligerent arrogance over more topics than I can name, but in none is it more insufferably snooty than in its opposition to the death penalty.

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