Democrats wimp out on death-penalty reform.

The law, lawyers, and the court.
Dec. 28 2007 12:29 PM

Capital Opportunity

Democrats could safely champion death-penalty reform—why aren't they?

Barack Obama. Click image to expand.
Barack Obama

The 2008 presidential race represents a lot of firsts: the first viable female and black candidates; the first new president since Sept. 11; the first race since 1928 without an incumbent running. * There's another first that's gone largely unnoticed: This is the first election in 20 years in which the death penalty isn't a go-to issue for conservatives. For a generation, Republican candidates wielded their fondness for executions like a weapon, and Democrats either summoned their own righteous bloodlust and embraced capital punishment, or avoided the subject altogether. But the Bush years have witnessed a steady shift in how Americans perceive the death penalty, and this time around, it's the last thing Republicans want to talk about. And yet, faced with an opportunity to seize the high ground in a debate they've been losing for decades, the Democrats can't summon the nerve. So, 2008 could go down in history as the year the Democrats had the chance to confront the death penalty—and didn't.

After Democrat Mike Dukakis nosedived in 1988 when he offered up an emotionless reaction to a death-penalty hypothetical in which his wife was murdered, Democrats spent the next decade trying to prove they weren't soft-on-crime wimps. Bill Clinton famously presided over the execution of a severely mentally handicapped man, as governor of Arkansas, during his first campaign. Running for re-election in 1996, Clinton bragged that he had "supported a crime bill that had 60 death penalties" during his first term. Reservations about the death penalty were an instant electoral liability. Like a professed or implied desire to raise taxes, they represented a big squishy target. When George W. Bush arrived in Washington, he made no apologies for presiding over 152 executions in Texas—more than any other governor in recent history.

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As Bush leaves office, however, that dynamic has turned on its head. Consider Mike Huckabee's angst-ridden response to a question in last month's Republican debate, when he confessed that implementing the death penalty "was the toughest decision I ever made as a human being." Huh? Since when has whether to ice a wife murderer been a tough decision?

It's not just Huckabee, either—none of the Republicans have continued the warm embrace of lethal injection exhibited by Bush and his father before him. In a debate earlier this year, half of the second-tier Republican candidates expressed serious reservations about capital punishment. The front-runners have kept quiet, with only Mitt Romney mentioning it in a debate—and then merely as one item on a laundry list of conservative credentials. Even Fred Thompson, traditionally a death-penalty hardliner, admitted this summer that the death penalty must be carefully implemented to be fair.

Why are Republicans execution-shy? Because over the last decade, a good governance movement has offered the proverbial glimpse inside the sausage factory and shown us how the death penalty actually works. This exposure began in 2000, when Illinois Gov. George Ryan—a Republican—appointed a commission to investigate the death penalty after his state released 13 innocent inmates from death row. That year, a Columbia University study showed that 65 percent of death-penalty cases are overturned on appellate review—a revelation cited by Al Gore during the 2000 campaign as reason to rethink capital punishment.

Seventy percent of all DNA exonerations have occurred since 2000, supplying scientific leverage to shake public confidence in capital punishment. In 1985, 56 percent of Americans supported the death penalty for murder, while only 34 percent preferred life without parole; in 2006, these numbers were an almost even 47 percent and 48 percent, respectively. Over that same period, the percentage of Americans who think the death penalty deters crime has been cut almost by half.

The Illinois commission's final 2002 report foreshadowed the no-win situation that the death penalty would become for Republicans, concluding that a fair death penalty would "require a significant increase in public funding at virtually every level, ranging from investigation through trial and its aftermath." For conservatives, this leads to a tough bind: increase the size of the government to make the death penalty fair, roll back the death penalty and risk seeming soft, or stay the course and seem like monsters indifferent to the execution of the innocent.

The Republican compromise has been to incorporate DNA testing into support for capital punishment. When Mitt Romney tried to reinstate the death penalty as governor of Massachusetts, he was sure to include DNA testing in his bill so as to "remove [the] possibility of execut[ing] someone who is innocent." And Thompson admitted this summer that "science must be used even more and earlier in the criminal process to protect the innocent and convict the guilty."

On the campaign trail, this kind of equivocation, and the retreat it signals, would seem to present a major opportunity for Democrats. They have an opening to champion death-penalty reform in a way that they haven't had before. What's more, all the front-runners have a history of supporting such change: Hillary Clinton sponsored a 2003 bill to beef up DNA testing in the criminal justice system; Barack Obama called the death penalty "broken" and worked for reform as a community organizer in Chicago; and John Edwards pushed for fairer trials and DNA testing during his 2004 campaign. In elections past, the Dukakis-style critique of capital punishment turned on moral questions about which it's hard to change people's minds. Today, opposition to the death penalty can rest squarely on pragmatism: The statistics are in, and the system doesn't work.

Death-penalty skepticism is so widespread that Clinton, Obama, or Edwards would hardly be going out on a limb if they made it a platform. This year, executions reached a 13-year low, the Supreme Court geared up to examine lethal injection, and earlier this month New Jersey became the first state in 40 years to abolish the death penalty. And yet the candidates aren't biting. Part of the explanation is that Iraq and terrorism have become the new arena in which Democrats must prove their mettle. Another concern may be that so long as 47 percent of Americans support the death penalty, advocating reform is still too risky. But Democrats say that they represent moral leadership and a force for change. That doesn't square with staying quiet about the death penalty until it's universally loathed. And with the race in the primary so close, candidates should be eager to distinguish themselves from their opponents while playing to the base (Democrats are far more likely to oppose the death penalty than are Republicans).

Curiously, the best explanation for the Democrats' reticence on this issue may be the remarkable decrease in crime of recent decades. Only 3 percent of Americans think crime is one of the top two problems facing the nation today, and while that should make it an ideal time to do away with the death penalty—because scare tactics can't be easily exploited—it's actually having the opposite effect. Americans may know that the death penalty's not working. They just don't care enough to insist that something be done about it. And for all of their talk about new forms of leadership, the Democratic candidates aren't going to waste air time or political capital trying to change that. The stage is set for a Democratic candidate to do the right thing on the death penalty, but none of them has the nerve. They might just be wimps after all.

* Correction, Jan. 11, 2007:The original sentence referred to Mitt Romney as the first viable Mormon presidential candidate. A correction posted on Dec. 28, 2007 explained that was wrong because in 1976, Rep. Mo Udall, a Mormon, ran a credible campaign for the Democratic nomination. The corrected sentence then referred to Romney as the first "actively practicing" Mormon candidate. However, that was also inaccurate, because his father, George Romney, made a brief run for the 1968 Republican nomination. ( Return to the corrected sentence.)

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