This week, Arkansas is rushing to execute as many inmates as possible before the last of its death penalty drugs expire. The 8 men slated for execution were all duly convicted under Arkansas law, and all have had the chance to appeal their convictions. Nevertheless, death penalty opponents, civil rights attorneys, and media outlets expressed outrage that Arkansas would schedule executions based on an expiration date. These activists are focusing their outrage on the wrong target. The problem is not the unseemly speed with which Arkansas has scheduled executions; the problem is that the death penalty exists at all. Activists have been trying to use the courts to end it, and that isn’t going to work. To end the death penalty permanently, the Supreme Court would have to rule that all executions violate the 8th Amendment’s prohibition against cruel and unusual punishment. They are just not going to do that when 60% of the American public supports the practice. The only way to end the death penalty is to convince Americans it cannot be justly applied in a flawed, human criminal justice system.
The Court will only abolish the death penalty if Americans stop supporting it
Ever since the Supreme Court briefly struck down the death penalty in the 1970s, activists have primarily focused on the courts as a vehicle to end it permanently. However, the Court has only been been willing to restrict application of the death penalty, not prevent states from applying it at all. Although lawyers successfully stopped the death penalty in 1972 for being racially biased, the penalty was reinstated when the Court concluded colorblind standards had been imposed (though it has since become clear executions are not blind to race). The prohibition on executing the legally insane (legal, not medical, terminology) is also just a limitation on how you execute a marginalized group, not on whether they can be subjected to the death penalty. The Court’s jurisprudence says you can’t execute anyone while they are actively delusional, not that an individual with mental illness cannot be executed. This delightful piece of jurisprudence has led states to forcibly medicate inmates in order to put them to death. These piecemeal measures may prolong litigation, but they seldom prevent executions.
Only twice has the Court truly dealt a blow to the death penalty. In the first case, it struck down capital punishment for the “mentally retarded,” noting that public opinion polls consistently supported eliminating the practice (certain states, like Texas, keep trying to roll this one back). Two years later it eliminated the death penalty for juveniles. In both of these cases, the Court was following public opinion. All of the justices, including Justice Ginsburg, are very wary of making decisions that are too far ahead of the public. More importantly, the “cruel and unusual punishment” standard is linked to public opinion. The reason we cannot put misbehaving teenagers in the stocks is that the Court decided our society has evolving standards of what is cruel and unusual. As long as public polls show broad support for the death penalty (and they do – California, of all places, recently decided to keep it) the Court is not going to strike it down.
The courts follow the people, so someone else needs to lead them in the right direction
We have no other option but to make an argument to our fellow citizens that the death penalty cannot be justly administered under our system. To be persuasive, we have to pick one of the many valid arguments against the death penalty and promote it relentlessly (think of how successful the gay rights movement has been since they decided to focus all their efforts on the marriage narrative). Knowing that many Americans still believe in the “punishing” part of capital punishment, I don’t think arguing that the death penalty is an absolute moral wrong or that it has no deterrent effect will be a particularly promising strategy. Instead, we have to focus on the fate of an innocent man wrongly accused. We must explain why the execution of an innocent man is fundamentally inconsistent with the American conception of liberty and justice, and why such executions are inevitable in a flawed system.
How many innocent men will you kill to keep the death penalty?
Being for or against the death penalty comes down to this: do you believe a just society should let 10 guilty men go free rather than execute an innocent one? What about a hundred? What about a thousand? Our legal system goes to great procedural lengths to prevent conviction of the innocent. It is stacked in favor of the defendant because it is based on the premise that the state has immense power and should have overwhelming proof that a citizen has broken a law before depriving him of his life, liberty, or property. That is why we have a presumption of innocence. That is why we have juries – so one man does not have the power to deprive the accused of his rights in a potentially arbitrary manner (juries are actually far more effective than people usually think). Executing innocent men is antithetical to a jurisprudence so determined to protect the accused from the state.
However, such executions are inevitable under our system as it stands. All of our institutions are human, and we have discovered over the past 30 years that many people were convicted of capital murder, sat on death row for years before being exonerated. We have also learned that the human memory, and therefore all eyewitness testimony, is unreliable, that forensic experts can be unreliable, and that we all drop DNA evidence all over the place, rendering it less useful in the majority of murders where the victims know one another. Despite advancements, all criminal sentencing is still essentially the best educated (or sometimes uneducated) guess of one or more flawed human beings. It is the human flaws in our system that make the use of capital punishment inhuman. I do not often say this about fellow citizens, but anyone who cannot see that the inevitable execution of the innocent is a betrayal of our values does not understand what it is to be an American.