The drawn-out death of capital punishment

Maryland’s legislature voted last week to become the 18th state of the United States to abolish capital punishment. The legislation was passed 82-56 on Friday in the House of Delegates, having passed the Senate the previous week 27-20. It now goes to the governor, a strong opponent of capital punishment, who will sign it into law.

The US is the only western democracy to retain capital punishment. Last year, 77 death sentences were handed down and 43 executions were carried out, across nine different states.

(Also, I’m sorry to keep picking on the BBC, but they really have some problems in the maths department: after telling us that Maryland is the 18th state to abolish capital punishment, the story says “nearly a third of the 50 states have now renounced executions.”)

It wasn’t supposed to be like this. The Supreme Court halted executions in 1972, and even when in 1976 it opened the door to their resumption, it was expected they would be a rare event (as they are, for example, in India and Japan). Instead, after a slow start, momentum built and by the turn of the century the rate was nearing a hundred a year. Over 1,300 people have been executed in the US since 1976, 493 of them in Texas alone.

But the tide now appears to be turning. Maryland is the sixth state in as many years to embrace abolition, and last year’s number of death sentences was the second-smallest since 1976. A referendum in California last November only narrowly voted against abolition, 52% to 48%. (California has not executed anyone since 2006, but it has upwards of 700 people on death row.)

The change in public opinion is clear. Gallup polls have shown support for the death penalty rising from a low of 42% in the mid-1960s to a high of 80% thirty years later, before falling off to the low 60s now.

This trend mirrors a range of other social issues where reform seemed to be on the brink of full acceptance in the 1960s and ’70s but then struck unexpected resistance. Legalisation of marijuana is another obvious example: the drive halted and then went into reverse, recovering only in the last decade or so. The defeat of the Equal Rights Amendment in the 1970s appears to show the same dynamic.

It’s a warning against any belief in the inevitability of progress (or of decline, for that matter). But it also raises the question of what is so special about the US. For two centuries it had generally been a world leader in measures to advance individual freedom; in the late 20th century it was overtaken on a number of fronts by western Europe. Why? Why was there no such discernible backlash in, for example, Australia?

Of course, each issue has its own special factors at work. The recent trend against capital punishment, for example, has been fuelled by technical developments, such as the use of DNA evidence, that have exonerated many innocent people – and therefore pushed to the forefront of public opinion the fact that the innocent are often convicted and may be executed. But there also seem to be broader forces at work.

One issue that did not really follow the trend was gay rights. Progress there since the 1970s has been slow, but relatively steady: there was no period during which reforms were wound back. Was there something the gays did differently that other reformers could learn from?

14 thoughts on “The drawn-out death of capital punishment

  1. It’s good to see one more US state abolish death penalty.
    Mr Richardson writes that “the US is the only western democracy to retain capital punishment”. What about Japan?
    There are nearly 130 prisoners waiting execution here. There was a slim hope when the Democratic Party won the government and stopped execution for a while. However, the return of the LDP means there will be more and frequent executions. It’s really shameful situation.
    Besides, the Japanese authority carries out execution with utmost secrecy.

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    1. Thanks Hiroya. I wasn’t counting Japan under “western democracies” because it’s culturally Asian, even though its political system is western (unlike Australia, which is culturally European despite being geographically eastern). But I agree that the return of capital punishment there is a matter of great concern. Nonetheless, even under the last LDP government executions were much more rare than they are in the US.

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  2. What does one do with unrepentant violent criminals if not kill them? I understand that jails are full of people who shouldn’t be there; petty criminals and the mentally ill can be rehabilitated, and obviously society has some serious work to do to reduce the socio-economic and racial inequities which are at the root of criminal activity in a huge percentage of cases. I’m not an advocate of capital punishment, mostly because of its overuse and especially because of its use in cases where the executed are not absolutely proven to be be guilty. I’d just like to know what California, for example, is supposed to do with its 700 Death Row inmates if it doesn’t execute them? Incarceration costs money which could otherwise be spent of improving schools in crime-ridden neighbourhoods, providing welfare for single parent families, rehabilitation for drug users, and so on. I remain, surprisingly, on the fence about this one. I’m just too ignorant on the subject to have a strong opinion one way or the other.

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  3. @cvsanders
    great idea mate.
    Let’s put everyone to death who has committed a serious crime and who is classified as unrepentant.
    Classified by whom? Well some kind of expert panel i’d say.
    Expert panels are known to be infallible.
    But why limit ourselves to criminals. The same argument applies beautifully to the ill (both mentally and physically) and all other kinds of unproductive members of society. Many of them can actually not be rehabilitated and are quite expensive
    Let’s use the same expert panels here, shall we?

    The amount of money we could save boggles the mind.

    You should run for PM later this year.

    Or even better: move to Texas or North Korea.

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  4. Compare the numbers of executions by state since 1976 with religiosity by state and you might find a correlation. As a whole the US is the most religious western nation and we all know how the bible can be used to justify anything. So why the temporary change in the 60s and 70s. It was the temporary period where a focus on other statements in the Bible briefly strengthened. “Thou shalt not kill” vice “eye for an eye”. God made man in his own image as opposed to those not equal in God’s eyes shouldn’t be equal under the law. But then of course they went back to eye for an eye.

    So why was gay rights different? Well it never reveived the surge in the 60s and 70s. And it wasn’t what the gays did differently. Its that there has never been any question about the Bible’s stand on gays. Well not since the groups of men gathered at ecumenical councils 300 years after Jesus died and decided which accounts of Jesus’s life should go into the Bible and which shouldn’t. And, of course, since the part of the Gospel of Mark (that described a young man wearing only a linen cloth came to Jesus, and Jesus stayed with him that night and taught him the mysteries of the Kingdom of Heaven was edited out). Since then the Bible has been clear that laying with another man as one lays with a woman is an abomination. Hence not rise and decline, just a slow progress to what should have been years ago. Perhaps contemporary religious views of homosexuals will one day be viewed the same way we now view the idea that being left handed was associated with the devil. In fact if history has taught us anything its that if religion feels strong enough about a topic to force their views on other people, they are wrong.

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  5. @dropBear

    Well, you know, I was thinking we could also include people who pick a stance very early in their lives and then stick to that stance without ever asking themselves questions or challenging their views in any way.

    Religious types, for example, or flamers?

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  6. Maybe the end part of my comment was cut off somehow. It said, ‘I remain, surprisingly, on the fence about this one. I’m just too ignorant on the subject to have a strong opinion one way or the other.’

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  7. @cvs: I don’t think the cost argument does much for capital punishment. 700 on death row sounds like a lot, but as a fraction of the cost of the California prison system it’s tiny. In fact at present capital punishment is more expensive than life imprisonment, because of the exhaustive appeals process you go thru; of course you could cut back on that, but that would just increase the risk of executing the innocent.

    @Aaron: Thanks, that’s an interesting way of looking at it. I think the much greater religious intensity in America is definitely part of the picture. But it (or something) seems to have an impact beyond what you would usually think of as religious issues: for example, the way opinion on marijuana prohibition has followed a similar trajectory to capital punishment, despite the lack of any obvious scriptural basis.

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  8. Yes, I was just talking to a friend of mine in the States who explained to me the costs of the appeals process. I suppose I was thinking more of what to do with the people who are already ON Death Row, rather than potential future ones.

    If we abolished capital punishment in Cali now, considering the already-enormous cost to society of determining those 700 people as punishable by death, would it be better to continue to keep those people alive at the expense of community programme funding, or should we just line them up, execute them, and then not send anyone through that process again?

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  9. tl;dr

    If we’ve already spent all that money on their appeals process, let’s cut our losses and execute them and then abolish the death penalty afterwards. Seems a waste of money to not kill them, now.

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    1. Even that doesn’t work, because the fact they’re on death row doesn’t mean their appeals have been exhausted. Most of them haven’t; that’s why they haven’t been executed. Much more importantly, the fact that they’re on death row doesn’t mean they’re guilty. The Innocence Project, which I linked to in the second-last para above, has helped exonerate 18 people who had been sentenced to dath..

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  10. @cvsanders – the problem with a policy of killing unrepentant criminals is that if you have examples where innocent people are convicted (and we do) it is very difficult to distinguish which convicts are “unrepentent” and which are “maintaining their innocence”.

    Charles, in relation to your question about why gay rights have slowly and steadily gained ground, but death penalty opposition has not – well it’s because you can’t compare the issues. Homosexuality is harmless, whereas so-called “capital” crimes are inherently anti-social, usually violent, and often very destructive at least to the victims.

    As a result, the slow, steady and hopefully ongoing progress of gay rights isn’t routinely set back by knee-jerk public outcries against horrific crimes the way that the anti-cap punishment movement is.

    The fact is that neither institutionalised homophobia nor capital punishment has any real factual justification, but public attitudes for gay rights has been typified by a slow evapouration of ignorance as people come to realise that what consenting people do is up to them.

    In the case of the death penalty, it is much harder to stop people reverting pack to a mentality of righteous retribution in response to a particularly violent or vicious crime. In those cases reason and discussions about deterrence, rehabilitation or cost seldom stand much ground.

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  11. (Sorry, that last comment was in response to cvsanders.)
    Jason, thanks for that. That all makes perfect sense; it doesn’t quite explain why attitudes to capital punishment moved in tandem with other issues like drugs, but I think the web of concerns around crime and race (and the way they were exploited by politicians) is probably the key.

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