A New York Times article that appeared on Good Friday caught my attention because of the topic it covered and how it contrasted with the day on which it got published. If a Times editor wanted to quietly make a point with the timing of the article’s release, I would not be surprised. Given the intelligence of the Times staff and their readership, I am reluctant to chalk this up to coincidence.
The article carried the title “Seeking an End to an Execution Law They Once Championed”. It reported on the efforts of two men, a California politician and a prosecutor who in 1978 lobbied for and won a campaign to expand the death penalty in California. Thirty-four years later, these same two men are campaigning for the abolition of the death penalty in that state. Fortunately, California is not alone in proposing such legislation. Florida, Georgia, Kansas, Kentucky and Washington have similar bills before their respective legislatures to abolish capital punishment. Connecticut’s assembly, at this writing, will likely pass its bill and their governor Dannel P. Malloy has promised to sign it into law. New York, in 2004, saw its death penalty law ruled unconstitutional by its supreme court and their legislature has not attempted to introduce a new law to restore it. New Jersey abolished the death penalty in 2007, followed by New Mexico in 2009. How appropriate that on the day commemorating how God Incarnate suffered the most cruel form of sustained torture and execution from the leading civilization of its day, that the leading nation on Earth now is finally moving on a path other western democracies had trod long ago: the abolition of the death penalty.
The bills proposed are not perfect. Some include language that do not commute the sentences of those already on death row to life imprisonment without parole. The reasoning behind the bills are too often utilitarian. The process of trying and appealing capital cases, maintaining death row units and carrying out death sentences has become prohibitively expensive in an era of tight state budgets. This is not to imply that the weak state of the national economy in recent years initiated this growing campaign to abolish the death penalty, but the argument against capital punishment on the basis of its cost relative to the punishments carried out has helped to accelerate it. This argument is being used to win over legislators who may vote to keep the death penalty due to the residual attraction of its punitive, revanchist nature.
Despite these flaws, this article appearing on Good Friday reminds one of what a patient, thorough ethics campaign backed by sound research and reasoning can achieve. Ten years ago, the death penalty appeared not only unassailable but its use was expanding. However, people inside the legal profession and across the humanities including theology pieced together the right arguments that are being included in today’s legislative debates. The death penalty was exposed as unjust. Capital punishment was disproportionately applied to the poor and minorities and the supposed safeguards designed to prevent the innocent from being sentenced to death and executed failed repeatedly. A chief failure of the system was that death row inmates got there due to poor legal representation. Stories flooded the media of death row inmates exonerated, sometimes hours before their scheduled execution, due to DNA testing or a reexamination of the evidence and re-interrogation of eyewitnesses used to convict them. One watershed moment was in 2003, when then-Illinois governor George Ryan commuted the sentences of that state’s death row inmates on the questions raised by such work. Despite his later conviction and imprisonment for corruption, Governor Ryan’s action was courageous considering the majority of Americans supported the death penalty, and it helped signal the beginning of our national reassessment of it. I include a text of his speech announcing the commutations and his reasons for doing it here: Gov. George Ryan’s Speech Commuting Illinois’ Death Sentences.
1976, our nation’s Bicentennial, was the year the United States Supreme Court allowed states to resume practicing the death penalty. This was part of a broader trend which marked our nation’s criminal justice system. Throughout the late 1970s and 80s, Americans frustrated by a tide of rising crime turned to more punitive efforts to restore order and punish those held responsible for disturbing the peace. Perhaps one can hope that the campaign to repeal the death penalty will translate into a broader reassessment of American criminal justice, sobered by the realization of what happens when our society’s just need to punish those who commit a crime is not balanced with mercy.