In this weekend’s New York Times Magazine, Bruce Shapiro argues that the American public’s attitude toward capital punishment “seems to be approaching a political tipping point.” He notes that a recent Gallup poll had 66 percent supporting the death penalty, down from 80 percent a few years ago.
Shapiro (citing criminologist Robert Bohm) attributes the drop to “doubts about the death penalty’s quotidian administration: about false conviction, racial discrimination, and other questions of fairness” rather than any rejection of the “fundamental premise” of capital punishment. Americans, he argues, increasingly object to “the unequal, corrupt, and racist reality of the capital trial apparatus.”
Shapiro seems to be on to something; the recent discovery of falsely convicted people on death row has clearly had a large impact, not the least on Illinois Gov. George Ryan, who earlier this year imposed a moratorium on executions. But this very impact casts doubt on Shapiro’s argument that Americans are also disgusted by the “unequal … racist” application of capital punishment.
After all, death-penalty foes had been protesting for decades that the application of capital punishment was unequal, arbitrary, and racially biased. They got nowhere (even though, I assume, many of their complaints were accurate). The public didn’t seem terribly worried about the refined issue of insuring perfect fairness in deciding who gets executed from among a group of first-degree killers. (The legal briefs in these cases could often fairly be summarized as “But my murder wasn’t as bad as that other guy’s murder!”) You say murderers have bought a ticket to a rigged game of Russian roulette? And your problem with that is … ? The elaborate procedures lawyers have designed in the name of removing any scintilla of racism or arbitrariness in sentencing are, not without reason, perceived by many voters as merely tactics to delay executions. But show the voters some innocent men on death row and they begin to get extremely agitated.
This suggests two other wellsprings of increased anti-death-penalty sentiment that may be stronger than the “racism” and “arbitrariness” arguments–and that Shapiro, as a contributor to the leftish Nation, might not find especially congenial.
One possibility is that the shift against the death penalty is part of a general libertarian distrust of large government institutions, in this case the criminal-justice complex. “Imagine an institution with the precision and efficiency of the Post Office, except that its job is to kill people,” author Peter Huber once reportedly said. (Huber, who indeed opposes the death penalty as “procedurally … an abomination,” told me over the phone he actually thinks this comparison is unfair to the Post Office.) Those with whom the anti-government objection resonates–and I’ve recently met more than one right-winger who makes just this case against capital punishment–are unlikely to be with the Nation on issues such as national health insurance or increased funding for public school systems.
Another possible source of the shift is generational. Here I’m following Kaus’ First Rule of Journalism, which says that you should always generalize wildly from your own personal experience. The relevant personal experience here was my father’s death. Having been around for that, I simply don’t want to cause the same thing to happen to anyone else, if I can help it. It isn’t a question of justice. It’s a selfish, aesthetic preference, a visceral recoil–but I’ll happily pay the cost (i.e., of keeping convicted murderers in prison, alive) of indulging it.
Certainly baby boomers who have come to face the issue of both their parents’ and their own mortality might be forgiven if the experience changed their attitude toward intentionally inflicting mortality on others, even others who are guilty of murder. Shapiro might approve of this sentiment, or maybe he’d object to its source (vain boomers keeping their hands clean). What he, or at least his Nation colleagues, would almost certainly object to is the way this anti-death recoil spills logically–or at least emotionally–over into greater opposition to abortion. I haven’t traveled all the way down this road myself, but it’s certainly the direction I’m heading.
P.S.: The current shift against capital punishment has another anti-liberal implication: that Willie Horton was a perfectly legitimate campaign issue in 1988. Those who now oppose the death penalty, as Shapiro notes, aren’t typically doing it because they believe in rehabilitation. They would execute killers if they could be certain of their guilt. (Likewise, those who have the “boomer” objection described above don’t necessarily want to see murderers freed.) These newer sorts of death-penalty opponents will rightly demand an alternative of life imprisonment without parole. That’s exactly what Horton was sentenced to for his murder, but the furlough program supported by Massachusetts Governor Michael Dukakis released him anyway, on the questionable grounds that even “life without parole” prisoners should be rehabilitated and eventually granted commutations. The Massachusetts scheme not only justly damaged Dukakis (if he approved that, what else would he approve?) but–by undermining the reliability of “life without parole”–probably delayed the anti-death-penalty shift Shapiro talks about for a decade.