There once was a burning political issue known as capital punishment. Others called it the death penalty. Entire political careers in the 1980s and 1990s were built on it or ruined by it. Democrat Michael Dukakis lost the presidency, many pundits said in 1988, by seeming mushy when asked what he would do if some guy murdered his wife. The 1992 nominee, Bill Clinton, learned the lesson. He jetted home to the Arkansas governor’s mansion in the middle of the campaign to preside over the execution of a mentally impaired prisoner.
But, as with other obsessions from the mix-tape era — such as Biosphere 2, the Y2K Bug and Hillary Clinton’s hairstyles — capital punishment has lost its grip on the public. The nation’s largest death row was shut down Wednesday with hardly a yawn in response.
California Gov. Gavin Newsom (D) announced that he will not pursue the execution of any of the 737 death-sentenced inmates at San Quentin State Prison. Calling capital punishment “ineffective, irreversible and immoral,” Newsom ordered the decommissioning of the execution chamber and rescinded the state’s protocol for lethal injection. These steps will make it more difficult for future California governors to reverse course.
The governors of Colorado, Oregon and Pennsylvania have already renounced the death penalty and have suffered no appreciable political backlash. Including California, these four indefinite pauses cover roughly one-third of all death row prisoners in the United States. Ohio Gov. Mike DeWine (R) has suspended the death penalty in his state — home to another 144 condemned prisoners — until an execution protocol can be devised that meets court standards.
Elsewhere, halts originally ordered by governors have led to outright abolition. Last year, Washington’s state Supreme Court cemented a 2014 moratorium by declaring the death penalty unconstitutional. In Illinois, a governor’s moratorium became permanent in 2011 when the legislature abolished capital punishment.
What used to be political dynamite has become about as explosive as damp newsprint. By walking away from capital punishment, elected leaders are essentially converting death sentences to life imprisonment without parole — and getting away with it for much the same reason Newsom was able to scale back California’s pie-in-the-sky bullet train earlier this year. The public is wise to expensive gestures that produce scant results.
The U.S. Supreme Court has ruled repeatedly over nearly half a century that the death penalty is different from all other punishments. It must meet stringent standards to be lawful. This perfectionism, fine on paper, has proved impossible for lower courts to satisfy reliably and efficiently.
So Newsom’s moratorium comes some 13 years after California’s last execution. In 2006, the state ended the life of a triple-murderer whose appeals had been rattling through the courts for nearly 25 years. Since then, nothing. Just endless waiting and endless litigation, with a price tag that experts reckon is in the billions.
Nationwide, fewer than 1 percent of death row prisoners were executed in 2018. A death row prisoner in 2016 (the most recent year for which data is available) was almost exactly as likely to die of natural causes as by execution. That’s not surprising given that the median age of inmates on death row was approaching 50.
These realities — high costs and rare results — first altered the politics of the death penalty at the local level, beginning some 20 years ago. Elected prosecutors, seeing their budgets decimated by the expense of capital trials and appeals, stopped seeking the death penalty. Between 1981 and 2000, U.S. courts imposed more than 200 death sentences per year — sometimes more than 300. But then the number fell sharply and hasn’t topped 50 per year since 2014.
Meanwhile, police officials came to the same realization. A poll of 500 police chiefs in 2008, commissioned by the Death Penalty Information Center, found that capital punishment ranked last among their preferred crime-fighting strategies.
This is the background against which so many governors have felt safe to be sane. State by state, they’re putting an end to this wasteful folly. State legislators are inching in the same direction. From New Hampshire to Wyoming, lawmakers are advancing bills to end capital punishment — led, in many cases, by conservatives.
Sooner or later, this sea change is likely to register on the institution that gave us this mess. In 1972, the Supreme Court looked out at a nation in which hundreds of prisoners languished on death rows and hardly any were executed. The court struck down this arbitrary system, and for four years there was no death penalty in the United States. But states promised that a more elaborate system would deliver reliable results.
Well, the results of that experiment are in. After more than four decades of tinkering with the system, capital punishment is a costly mockery of justice. What was unconstitutional in 1972 remains so today. The high court should call the whole thing off.
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