The Nebraska State Capitol. Photo by Sarah Murray.
Longtime readers of this blog know my stance on capital punishment.
It isn’t complicated. The death penalty is always wrong. Even beyond the ethical reasons to abolish it, in practice, it is all downside. When it is applied to someone who, it later turns out, did not commit the crime for which they were convicted, it is a gross miscarriage of justice that can never be put right. And even when no mistakes are involved, the death penalty is about vengeance, not justice.
Capital punishment also creates bizarre consequences in the way justice is administered by juries of the defendant’s peers, as became obvious in the trial of Dzhokhar Tsarnaev, who was convicted of 30 charges in connection with the 2013 Boston Marathon bombings.
Massachusetts does not have the death penalty, but the sentence was applicable in Tsarnaev’s case because he was tried on federal, not state, charges. In Massachusetts, most residents oppose capital punishment; recent polling data from the Boston Globe showed about 55 percent of state residents surveyed opposed and about 30 percent supported. For Boston residents, the supporter numbers shrink to 25 percent. In both groups, even fewer supported the death penalty in the specific case of the Marathon bombers. A survey by Boston’s NPR affiliate, WBUR, yielded similar results.
To get a jury that could consider the death penalty in the Tsarnaev case, prospective jurors had to be “death qualified:” that is, they had to tell the court that they were willing to apply the death penalty, at least under some circumstances. This means, by definition, the jurors in Tsarnaev’s case were not representative of the community as a whole, since even one juror’s opposition could have eliminated the death penalty as an option. This is a bizarre outcome in a system that is supposed to reflect the community’s values.
Yet there is reason to hope that state legislatures, if not Congress, are increasingly inclined to correct this defect in our justice system. A few years ago, I wrote about Rhode Island’s refusal to yield a prisoner to federal custody on the grounds that doing so would expose him to the possibility of capital punishment. (The prisoner was later sentenced to life in federal prison without the possibility of release.) Since that writing, three more states have abolished the death penalty, with the most recent joining the list just last week: Nebraska.
In Nebraska, the Legislature’s override of the gubernatorial veto shows that if the death penalty was once a partisan issue, as it has been only for limited periods, it is not now. Not only did every Democrat in the state’s unicameral legislature vote to eliminate the death penalty, so did a large portion, though not a majority, of Republicans. As many news outlets noted, Nebraska is the first strongly conservative state to abolish the death penalty since North Dakota did so in 1973.
Bloomberg observed that Nebraska was one of 14 states to introduce legislation banning the death penalty so far this year; nine of those bills are still at least technically active. Many states that have not formally banned the death penalty have let it fall into effective disuse. Others have struggled to obtain the drugs necessary for lethal injections. And Time magazine, in a recent cover story, noted that even national leader Texas has seen a decline in executions actually carried out over the past decade. While conservative politicians who oppose capital punishment have used mounting costs, religious objections or examples of wrongful convictions to justify their stance, the truth is that the partisan divide is crumbling on this issue. Although 63 percent of Americans still support the death penalty in murder convictions according to the most recent Gallup poll, the practice is increasingly striking lawmakers of both parties as expensive and ineffective.
Today, conservatives as well as liberals realize that the death penalty does not deter crime and doesn’t even punish crime as effectively as long-term prison sentences. If given life, Tsarnaev would have had decades to reflect on the horror he inflicted and to realize the emptiness of what he thought was his cause. Instead, the death penalty - when implemented under the required standards of humane treatment - merely punishes the criminal’s survivors, who have to live with the spectacle and the knowledge of how their family member was put to death by the state.
The emptiness of the death penalty as a criminal justice measure is why so many Democratic jurisdictions, and now Nebraska, have abandoned it. It is also why its continued use in this country lumps us with oppressive systems and societies whose standards of justice are best described as medieval. We know better, and we should expect as much from our courts and lawmakers.