The Unkillable Death Penalty

The Unkillable Death Penalty

The Unkillable Death Penalty

The history behind current events.
June 2 2000 9:30 PM

The Unkillable Death Penalty

DNA tests won't stop capital punishment. 

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Is the death penalty doomed? Consider some recent news: 

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Texas Gov. George W. Bush, after letting 131 executions go forward, just agreed to a reprieve for death-row prisoner Ricky Nolen McGinn after learning that DNA tests may exonerate him. In Illinois, Republican Gov. George Ryan declared a moratorium on executions after new evidence exculpated 13 inmates. Twelve state legislatures have introduced bills to abolish capital punishment this year, with New Hampshire's nearly becoming law. Public support for the penalty stands at a 19-year low, prompting predictions that it's only a matter of time before the DNA-based exoneration of more condemned men—such as those discussed in the best seller Actual Innocence—seals capital punishment's fate.

It's a false hope, if history is any guide. Three times in our past, anti-death-penalty movements have been on the verge of success. Each time, the death penalty has returned, sometimes with even greater support than before.

The death penalty has been an American institution since the Jamestown colony executed Capt. George Kendall in 1608. For the next two centuries, death was a routine punishment up and down the colonies. Following English law, which by the 17th century liberally doled out the death penalty, Americans resorted to the gallows not only for murder and rape but also, depending on the colony, for theft, idolatry, sodomy, slave-stealing, witchcraft, and blasphemy.

Strong opposition first emerged only after the Revolution. America's republican ideals, still burning bright, were channeled into various reformist crusades. One was the campaign, led by Philadelphia's Benjamin Rush, to replace death sentences with penitentiaries, which, it was hoped, would rehabilitate, rather than simply punish, criminals.

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The Second Great Awakening—the religious revival of the early 19th century—bolstered the abolitionist cause (as well as that of various other humanitarian crusades, from the abolition of slavery to temperance to the care of prostitutes and orphans). By the 1830s, constituents were flooding state legislatures with petitions demanding an end to capital punishment. Some states and territories passed total or near-total bans. Others stopped the widespread practice of public executions or trimmed the list of capital crimes. In 1845, reformers founded the American Society for the Abolition of Capital Punishment, believing America was marching down the road of progress toward enlightenment.

In the 1840s and '50s, however, the showdown over slavery shoved the movement to the margins of politics. With the onset of the Civil War, death-penalty foes despaired. "It is useless to talk of saving life," one young activist wrote to Wendell Phillips, "when we are killing by thousands." The assassinations of Presidents Lincoln and Garfield, and a general sense of social collapse in the Gilded Age, secured the movement's demise. Iowa and Maine, which had recently abolished the penalty, went so far as to re-establish it. By the 1870s, executions were taking place at a rate of 1,000 per decade.

This pattern—reform followed quickly by repeal—recurred during the next great period of public activism, the 1900s and the 'teens. Abolition once again emerged as part of a larger agenda, fueled by a quasi-scientific faith in the state's capacity to improve human character and by a socially minded Christianity. From 1907 to 1917, nine states abolished the death penalty and others implemented partial reforms. Again, however, the changes were fleeting, dashing the utopians' hopes. Race riots and labor violence in 1919 gave way to a perceived crime wave during the Prohibitionist 1920s, bringing calls for a crackdown. Once more, some of the states that had abolished capital punishment brought it back.

A third flurry of anti-death-penalty agitation came in the 1960s. By then, executions had been declining in number for three decades, and public support for the death penalty was at an all-time low. From the late '50s to the late '60s, nine more states did away with capital punishment in part or in full.

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Beyond the legislative efforts, death-penalty foes adopted a new strategy of fighting in federal court. The American Civil Liberties Union, the NAACP Legal Defense and Education Fund, and other legal outfits appealed as many capital convictions as possible, offering a barrage of arguments about why such punishment, both in individual cases and in general, was illegitimate. By 1967 they had succeeded in halting all executions—a cessation that lasted 10 years. Emboldened, state governors and attorneys general commuted the sentences of death-row prisoners.

The modern movement's crowning moment came in June 1972. That month the Supreme Court ruled in Furman vs. Georgia that all executions under the current system amounted to cruel and unusual punishment and were unconstitutional. Six hundred death-row prisoners were re-sentenced to life in prison. When the news was announced, death-penalty foes rejoiced. In the Legal Defense Fund's headquarters, staffers partied to a rock band called the Eighth Amendment while Jack Greenberg, the group's president, declared in the New York Times that capital punishment was a thing of the past. Even Chief Justice Warren Burger, a Republican who dissented in Furman, agreed with Greenberg's prediction.

Once more, however, such conclusions proved premature. Furman hadn't declared the death penalty inherently unconstitutional; it allowed that a more fairly administered penalty could pass muster. States quickly set about drafting new laws, 28 of which passed in the next two years. (Ten more have joined them since.) Public support for the death penalty, which had been climbing in response to rising crime, now boomed, possibly because of resentment toward the Supreme Court. (Click for a note on the controversy over poll data.)

Another Supreme Court case in 1976 upheld a new Georgia death-penalty statute, clearing the way for executions again. In January 1977, a Utah firing squad executed Gary Gilmore, the first person put to death under the new laws. No one else was executed that year, but the numbers of death-penalty victims soon mounted. At first, executions averaged about 10 a year. By 1999 they had skyrocketed to 610. Politicians outdid each other in cheerleading for the death penalty. George Bush showed it to be a winning issue at Michael Dukakis' expense, as did Bill Clinton at Ricky Ray Rector's.

Although the anti-death-penalty movement remained active in the '80s and '90s, it didn't become a mass movement. Probably this was because advocates insisted on making their case in terms that had little resonance for most Americans, choosing such dubious poster boys as Mumia Abu-Jamal. They contended that the death penalty was biased according to race and class, or that it didn't serve as an effective deterrent—arguments that, however true, couldn't match "an eye for an eye" in either visceral power or bumper-sticker readiness.

With the recent advent of DNA evidence, however, a new, more clearly compelling case against the death penalty has re-emerged: The risk of executing an innocent person. Previously, death-penalty opponents such as the philosopher Hugo Adam Bedau had compiled lists of innocent people wrongly executed throughout American history, but only with the authority of science did such arguments assume persuasive power. Suddenly, there was again talk that the death penalty might be moribund, untenable in an age when innocence can be incontrovertibly proved.

The problem with this scenario of the collapse of capital punishment in the face of science is that it's just as easy to envision the opposite. If it ever becomes possible to decide conclusively who is innocent and who is guilty, executing the innocent will no longer be a hazard. Then Americans will have to wrestle with the really tough questions. After all, everyone is against killing the innocent. Killing the guilty is much more problematic. On that question, history shows that public and political opinion has been extraordinarily fickle. And fickleness is not a quality one likes to see when contemplating the taking of human life.