Democrats and the Death Penalty

California Governor Gavin Newsome may have put the issue front and center for 2020.


Under CC0 Public Domain license from pxhere

A month ago, the governor of our largest state suspended executions:

Gov. Gavin Newsom signed a sweeping order on Wednesday putting an executive moratorium on California’s troubled death penalty, thus ordering a reprieve for the 737 people on death row.

The action suspends any further executions in California as long as Newsom is governor. But only California voters can repeal the death penalty, something they rejected narrowly three years ago.

Newsom also ordered the immediate closure of the state’s execution chamber at San Quentin State Prison. The order does not otherwise change any existing convictions or sentences — and will not lead to any death row inmates being released.

“Our death penalty system has been — by any measure — a failure,” Newsom said in a written statement. “It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. But most of all, the death penalty is absolute, irreversible and irreparable in the event of a human error.”

NPR, “Gov. Gavin Newsom Suspends Death Penalty In California”

This accelerates a trend, as several other states have come to the same conclusion over the last two decades. But Tim Arango argues that Newsome has thrust this issue into the 2020 election campaign.

Almost immediately, Democratic presidential candidates lined up in support, calling capital punishment a moral outrage infected with racial bias. Senator Kamala Harris of California, a former prosecutor, called for a federal moratorium on executions. Former Representative Beto O’Rourke of Texas did the same.

The moment marked a generational shift for a party where some candidates long supported the death penalty to protect themselves from being portrayed as soft on crime.

But Democrats aren’t leading a national debate; they are following a decades-long trend that has seen support for the death penalty drop from nearly 80 percent in the 1990s to just over 50 percent now.

NYT, “Democrats Rethink the Death Penalty, and Its Politics”

Okay. So what’s the problem?

Still, many feel that Mr. Newsom was doing his party no favors politically by forcing Democrats to talk about an issue that can still be fraught in a general election. Even in solidly Democratic California, voters in 2016 rejected a ballot initiative to end the death penalty and instead approved one to expedite executions.

In short, the moment captured what has changed significantly and what has not with an issue that is hard-wired into the nation’s psyche. Like the proliferation of guns, capital punishment distinguishes the United States from other Western democracies, virtually all of which have banned it.

Bill Whalen, a research fellow at the Hoover Institution who once advised Pete Wilson, a Republican former governor of California, wrote in a column: “Every Democrat who wants to unseat President Trump now must figure out where they stand on the death penalty.”
He continued: “For some triangulating Democrats, that’s a tricky balancing act given that capital punishment is despised by the party’s progressive base but is far more popular in the crime-and-order Heartland.”

I’m not convinced that it’ll be a major issue in the 2020 presidential campaign, although I can see it being an issue in Congressional races. The obvious dodge here is to simply declare that this is an issue for the states, not the Federal government, to decide. Because it always has been.

Arango acknowledges this:

The new attention notwithstanding, presidents are limited in their power over capital punishment, several experts pointed out in interviews. A president could clear federal death row, but that includes only 62 people compared to more than 2,500 condemned inmates in state prisons.

The federal government has executed only three people since it reinstated capital punishment in 1988 — one of them was Timothy McVeigh — and the last one was in 2003.

There is an indirect way in which the issue may play in the presidential race:

The president has far greater power to determine the future of capital punishment in the United States by appointing justices to the Supreme Court. Experts expect the court to eventually rule on whether the Constitution allows executions at a time of increasing recognition of the enormous financial costs of the death penalty, high-profile exonerations and research showing persistent racial bias in capital cases.

“The president, and what the president does, will bear very much on the Supreme Court’s thinking on this, because the president does reflect the national electorate,” said James S. Liebman, a professor at Columbia University who specializes in the death penalty.

Of course, Supreme Court appointments have long been a central issue in presidential races and rightly so. Indeed, it was the basis on which a lot of Republican voters who truly disliked Donald Trump justified voting for him in 2016. I’m not sure that the death penalty will be a major additional factor, though, in that the sort of judges who would strike it down would otherwise be anathema to Republican voters and attractive to Democrats.

FILED UNDER: Campaign 2020, Crime, Eighth Amendment, Law and the Courts, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MarkedMan says:

    My anti-death penalty view came not from the big moral picture, but from the practical and mundane. If we have the death penalty, we must also have the mechanism for death. We must pay people to decide to kill the prisoners, to prepare them, and prepare and clean the death chambers, then take care of the prisoner’s body after some state or federal employee who stands in for us all kills them. Does creating this mechanism make us better as a people? I can’t imagine that it does. It inevitably leads to moral degradation like Texas, where governors and politicians vie with each other to see who can kill the most people, callous and indifferent, all the while making jokes.

    I know the precise moment when my viewpoint crystallized. It was during the OJ trial, and I was listening to a panel discussion on NPR and it turned to whether he would get the death penalty if convicted. It went around and around and then one of the panelists said that there was zero chance he would get the death penalty. The other panelists challenged him and he pointed out that of the thousands of people on death row at the time not a single one had a private lawyer. Every single one had a public defender. And at that moment I realized that the high minded arguments meant nothing. The truth lay in the practical and mundane. A system that literally only kills the poor is too morally corrupting to continue.

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  2. mattbernius says:

    Leaving aside a discussion of the death penalty itself, I think you analysis here is spot on James:

    I’m not convinced that it’ll be a major issue in the 2020 presidential campaign, although I can see it being an issue in Congressional races. The obvious dodge here is to simply declare that this is an issue for the states, not the Federal government, to decide. Because it always has been.

    Generally speaking, there is little to no interested in substantive sweeping state-level criminal justice reform in Congress. They were *barely* able to get the First Step Act through. Moral discussions aside, this is a far thorny issue (including that the Death Penalty is enshrined in many State Constitutions. I am not sure there is really any way to directly override that at a Federal Level through legislation (other than passing a Constitutional Amendment). The best they could do might be to essentially kill it via withholding federal funds (but I think that would be DOA even with a fully Democratic congress and a Democratic in the White House).

    Honestly, if it ever happens, it will probably happen through the courts and most likely a finding that it’s impossible to administer fairly (versus the cruel and unusual argument).

  3. Scott says:

    I became unalterably against the death penalty when, in Texas, the state put an innocent man to death and the prosecutor was charged with prosecutorial misconduct. I don’t have a lot of sympathy for murders but quite a lot for innocent people. Even if one person is erroneously executed that is one too many.

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  4. Slugger says:

    The question isn’t what you and I think about the death penalty but whether this issue can mobilize voters. About forty percent of eligible voters have not turned out in recent presidential elections. It is probably more effective to get the people who already share your views to turn out than to convince people leaning the other way to change their mind. To do this, you have to energize them. This was Karl Rove’s insight. Thus you will hear about things that are actually not federal issues. The death penalty is one of these. The big one is abortion, Abortion, ABORTION where the sharp decline in numbers will never be mentioned. The decline in capital crimes where New York gave up the death penalty in 2007 with record low murders in 2018 will also not be mentioned. Some MtF transperson working as a clerical worker in a school will be mentioned a lot more than foreign policy with regard to Turkey. So it goes.

  5. Jay L Gischer says:

    Leaving aside my own feelings about the death penalty, this looks like a typical Newsom move. Go just a big faster and bigger than most other Democratic politicians want to, because that keeps them from stealing your issue.

    To me, this sort of thing is forgivable if it works. That sounds a lot like I’m making the end justify the means, but simply looking at the realm of political strategy, not the policy outcome. And Newsom is in a much better position to evaluate political strategy than I am. For one thing, he knows how he is going to follow up. For another, I’m sure he’s looked at a lot of polling data which I haven’t seen.

  6. Kathy says:

    @mattbernius:

    Honestly, if it ever happens, it will probably happen through the courts and most likely a finding that it’s impossible to administer fairly (versus the cruel and unusual argument).

    IMO, that would be a good thing beyond the death penalty issue. If one means of punishment and retribution is struck down due to fairness, the courts would have to consider how fairly other means are applied as well.

  7. mattbernius says:

    @Kathy:
    Interesting point… I need to think through that a bit.

    My sense is that the death penalty is unique in that, once successfully carried out, there are no do-overs. And even that may be a stretch for the SC (especially as currently comprised).

    I’m not sure that logic applies as easily to lesser sentences…

  8. Kathy says:

    @mattbernius:

    I’m not sure that logic applies as easily to lesser sentences…

    I misspoke.

    What I mean is with a Supreme Court precedent regarding fairness in place, the courts overall should consider fairness of application of sentences in other areas for other types of sentences. It’s likely others sentenced to what amounts to cruel and unusual punishment, would resort to this type of argument (people in for life for a third strike, for example).

    But the precedent’s not even in yet.

  9. Kit says:

    @MarkedMan: Very well said. I know where I stand on abortion, for example, having come to carefully considered opinion. But not with the death penalty. On that issue, I can start down any number of paths and find that my opposition to the death penalty naturally follows from other principles.

    And then there’s simply the silence on the part of conservatives when it comes to really defending the system. Where are the voices saying: Yes, I’m for the death penalty, but it’s a scandal that all the people on death row are poor. Or overwhelmingly black. Or that some are mentally handicapped. Or innocent. No, instead we hear about the burdensome cost and time. We might hear a content-free murmur about deterrence. But mostly I hear whoops when the adherents of a culture of death and nihilism get their red meat.

  10. Just nutha ignint cracker says:

    @mattbernius:

    Honestly, if it ever happens, it will probably happen through the courts and most likely a finding that it’s impossible to administer fairly (versus the cruel and unusual argument).

    Or, we can try to persuade the public on the issue and get the number of supporters below 50%. It would be nice for a change, and good optics to boot, if good people started doing right things without each side relying on the courts to legislate what we won’t do on our own.

    On the other hand, I no longer see Americans in aggregate as “good people,” so you’re probably correct in thinking that change will only come through the courts–in which case, we are now officially a generation away from it. Maybe two.

  11. mattbernius says:

    What I mean is with a Supreme Court precedent regarding fairness in place, the courts overall should consider fairness of application of sentences in other areas for other types of sentences.

    That is already part of the theoretical deliberations a judge engages in as part of sentencing.

    The problem is that the “tough on crime” movement intentionally works to limit this through things like mandatory minimums or prescribed sentencing like “three strike” laws.

    It’s likely others sentenced to what amounts to cruel and unusual punishment, would resort to this type of argument (people in for life for a third strike, for example).

    Yes, there is the possibility that such a theoretical finding could be used to strike those down.

  12. DrDaveT says:

    For me, the major cognitive dissonance arises in that large set of people who both don’t trust the government to do anything right and want it to decide to kill people, preferably quickly.

    I’ve taken to responding to people who assert that government shouldn’t be allowed to do anything with “Yeah, I’m totally against the death penalty too.” It does tend to flummox them…

  13. mattbernius says:

    @DrDaveT:
    Oh god, don’t get me started on that one.

    The way I have seen some people thread that needle is by saying “the government doesn’t convict, it’s the jury of one’s peers (in other words good ol’ honest American citizens).” The amount of mental gymnastics that go into that argument really deserve a gold medal.

  14. Just nutha ignint cracker says:

    @mattbernius: When I was in high school taking “Contemporary World Problems” (the equivalent of civics or government back in the day) my teacher spent a week or two introducing us to Aristotelian logic on the premise that we would need to have some basis in thinking to discuss the course materials intelligently. One of the questions we addressed in that intro to logic was “is it really possible for a person to be tried by a jury of his or her peers?” His argument was that random people drawn from the voter registry is an inadequate measure of how much life experience and shared cultural and social knowledge and experience, economic standing and shared philosophy existed between the accused and the jury (there may have been more, but at least these were stipulated as the things that make someone some else’s peer).

    It was really interesting sitting in a room watching a man who was a life-long Republican of near John Birch level conservatism assert that it is unfair for a bank robber to be tried by people who have never even considered robbing a bank. Exactly how are such people “peers” of the person on trial?

    I should note at this point that it was my 5th grade teacher who taught us how to recognize the wrong answers in multiple choice sequences to prepare us for the “high stakes” test of the era–The Iowa Achievement Test. He asserted that in testing situations, it almost always more important to know which answers are wrong than which one is right, because, particularly in the math section, no one has enough time to work out all the equations/problems.

    ETA: Interestingly, he also asserted during this set of lectures that white people were unqualified to render judgement over blacks like Bobby Seal because white people cannot understand the conditions of life as he did and, therefore, were NOT his peers.

  15. Dudley Sharp says:

    @MarkedMan:

    Total nonsense. OJ was not subject to the death penalty. And, of course, there are inmates on death row who had private attorneys.

  16. Dudley Sharp says:

    @Scott:

    I am unaware that Texas put an innocent to death.

    What happened with the charges against the prosecutor?@mattbernius: