Death penalty is­sue thrust to fore­front, forc­ing Democrats to con­front topic

The Buffalo News - - WASHINGTON NEWS - By Tim Arango

LOS AN­GE­LES – By sign­ing an ex­ec­u­tive or­der, Gov. Gavin New­som of Cal­i­for­nia re­cently ended the threat of ex­e­cu­tion as long as he is in of­fice for the 737 in­mates on the state’s death row, the largest in the West­ern Hemi­sphere.

Al­most im­me­di­ately, Demo­cratic pres­i­den­tial can­di­dates lined up in sup­port, call­ing cap­i­tal pun­ish­ment a moral out­rage in­fected with racial bias. Sen. Ka­mala Har­ris of Cal­i­for­nia, a for­mer prose­cu­tor, called for a fed­eral mora­to­rium on ex­e­cu­tions. For­mer Rep. Beto O’Rourke of Texas did the same.

The mo­ment marked a gen­er­a­tional shift for a party where some can­di­dates long sup­ported the death penalty to pro­tect them­selves from be­ing por­trayed as soft on crime. But Democrats aren’t lead­ing a na­tional de­bate; they are fol­low­ing a decades­long trend that has seen sup­port for the death penalty drop from nearly 80 per­cent in the 1990s to just over 50 per­cent now.

Still, many feel that New­som was do­ing his party no fa­vors po­lit­i­cally by forc­ing Democrats to talk about an is­sue that can still be fraught in a gen­eral elec­tion. Even in solidly Demo­cratic Cal­i­for­nia, vot­ers in 2016 re­jected a bal­lot ini­tia­tive to end the death penalty and in­stead ap­proved one to ex­pe­dite ex­e­cu­tions. In short, the mo­ment cap­tured what has changed sig­nif­i­cantly and what has not with an is­sue that is hard-wired into the na­tion’s psy­che. Like the pro­lif­er­a­tion of guns, cap­i­tal pun­ish­ment dis­tin­guishes the United States from other West­ern democ­ra­cies, vir­tu­ally all of which have banned it.

Bill Whalen, a re­search fel­low at the Hoover In­sti­tu­tion who once ad­vised Pete Wil­son, a Repub­li­can for­mer gov­er­nor of Cal­i­for­nia, wrote in a col­umn: “Ev­ery Demo­crat who wants to un­seat Pres­i­dent Trump now must fig­ure out where they stand on the death penalty.”

He con­tin­ued: “For some tri­an­gu­lat­ing Democrats, that’s a tricky bal­anc­ing act given that cap­i­tal pun­ish­ment is de­spised by the party’s pro­gres­sive base but is far more pop­u­lar in the crime-and-or­der Heart­land.”

The fed­eral gov­ern­ment has ex­e­cuted only three peo­ple since it re­in­stated cap­i­tal pun­ish­ment in 1988 – one of them was Ti­mothy McVeigh – and the last one was in 2003.

New po­si­tions, new risks

You don’t have to look back very far to see what a shift there has been in the po­si­tions taken by Demo­cratic can­di­dates.

In 2016, for the first time, the Demo­cratic Party plat­form called for the abo­li­tion of the death penalty. But Hil­lary Clin­ton, the party’s nom­i­nee for pres­i­dent, sup­ported cap­i­tal pun­ish­ment. Pres­i­dent Barack Obama never called for its end, ei­ther. Al Gore was a sup­porter, and so was Bill Clin­ton.

Some fear it could still be a los­ing is­sue in a gen­eral elec­tion against Pres­i­dent Trump, who has talked about ex­pand­ing those el­i­gi­ble for ex­e­cu­tion to in­clude con­victed drug deal­ers and could use the is­sue to rally his base and por­tray Democrats as weak on crime.

In a Twit­ter post about New­som’s mora­to­rium, Trump wrote, “friends and fam­i­lies of the al­ways for­got­ten VIC­TIMS are not thrilled, and nei­ther am I!”

The is­sue il­lu­mi­nates ide­o­log­i­cal and gen­er­a­tional di­vides among many Demo­cratic vot­ers. Many of the pres­i­den­tial can­di­dates are on record op­pos­ing cap­i­tal pun­ish­ment; Joe Bi­den, the for­mer vice pres­i­dent who is ex­pected to en­ter the race in the com­ing weeks, has sup­ported it.

As a sen­a­tor in the 1990s, Bi­den sup­ported many get-tough-on-crime poli­cies that lib­er­als now dis­avow, in­clud­ing lim­its on ap­peals for death row in­mates.

“Bi­den was one of the ma­jor pro­po­nents of the 1994 amend­ments that se­verely lim­ited the abil­ity of death row pris­on­ers to ob­tain mean­ing­ful ju­di­cial re­view,” said Robert Dun­ham, ex­ec­u­tive di­rec­tor of the Death Penalty In­for­ma­tion Cen­ter, a non­profit group that pro­vides anal­y­sis and in­for­ma­tion on cap­i­tal pun­ish­ment. “Other peo­ple who have spon­sored that bill have said they thought that was a mis­take. And I think that vot­ers will have to de­cide whether can­di­dates for of­fice have made mis­takes and learned from them, or whether they are pro­fess­ing new views be­cause the views of the pub­lic have changed.”

While Har­ris has long op­posed cap­i­tal pun­ish­ment, she has a some­what com­pli­cated his­tory on the is­sue. As the district at­tor­ney in San Fran­cisco, she re­fused to seek a death sen­tence for a de­fen­dant ac­cused of mur­der­ing a po­lice of­fi­cer, pro­vok­ing out­rage from the right. But she de­fended Cal­i­for­nia’s death penalty as the state’s at­tor­ney gen­eral, and twice, in 2012 and 2016, she re­fused to take a stand on bal­lot ini­tia­tives that pro­posed to abol­ish it.

Aside from Bi­den, most of the other can­di­dates have op­posed the death penalty. In ad­di­tion to Har­ris and O’Rourke, who have said they would sup­port a fed­eral mora­to­rium, Sens. Bernie San­ders, Cory Booker, El­iz­a­beth War­ren and Kirsten Gil­li­brand all said they sup­port New­som’s mora­to­rium. Two for­mer gov­er­nors in the race – John Hick­en­looper of Colorado and Jay Inslee of Wash­ing­ton – im­posed mora­to­ri­ums in their states.

Lim­it­ing ex­e­cu­tions

For all the shifts on the death penalty, its sta­tus now is de­fined by two things. The Supreme Court, which de­ter­mines its le­gal­ity, seems firmly in fa­vor of it. And at the state level, where prose­cu­tors, jurors and lo­cal courts ad­min­is­ter the jus­tice sys­tem, the num­ber of death sen­tences and ex­e­cu­tions is plum­met­ing.

A very dif­fer­ent Supreme Court de­clared ex­e­cu­tions un­con­sti­tu­tional in 1972, say­ing the ar­bi­trary use of cap­i­tal pun­ish­ment con­sti­tuted “cruel and un­usual pun­ish­ment” un­der the Eighth Amend­ment. Four years later, af­ter states be­gan re­mak­ing their death penalty sys­tems, the court ruled that ex­e­cu­tions could re­sume. (The first new fed­eral death penalty statutes were ap­proved in 1988.)

Ex­e­cu­tions soared dur­ing a pe­riod of high crime rates in the 1980s and 1990s. The high point for death sen­tences was 1996, when 315 peo­ple were con­demned to die. In 1999, 98 peo­ple were ex­e­cuted, the most in any year since 1976.

Since then, as crime has fallen, the num­ber of new death sen­tences dropped to 31 in 2016, a mod­ern-era low, and 20 states have ended the prac­tice. In three im­por­tant cases in re­cent years – in 2002, 2005 and 2008 – the court has nar­rowed the death penalty’s scope, rul­ing that ju­ve­niles and those with in­tel­lec­tual dis­abil­i­ties can’t be ex­e­cuted, and lim­it­ing the types of crimes – mostly only mur­der – that are el­i­gi­ble for a cap­i­tal sen­tence.

But the court – with two new con­ser­va­tive jus­tices ap­pointed by Trump, Neil Gor­such and Brett Ka­vanaugh, and a 5-4 con­ser­va­tive ma­jor­ity – is seen as be­hind the death penalty.

‘The most toxic is­sue’

The death penalty has long played a pow­er­ful role in pres­i­den­tial pol­i­tics, es­pe­cially in the 1980s and 1990s.

It helped sink the can­di­dacy of Michael Dukakis, a Demo­crat, in 1988 when he said in a de­bate that he would op­pose an ex­e­cu­tion even if his wife, Kitty, were raped and mur­dered.

Four years later, Bill Clin­ton rushed back to Arkansas from the cam­paign trail to over­see the ex­e­cu­tion of a men­tally dis­abled man con­victed of killing a po­lice of­fi­cer, bur­nish­ing an im­age of be­ing tough on crime.

“It was just the most toxic is­sue,” said Stephen B. Bright, a pro­fes­sor at Yale Law School, who noted that dur­ing this time many state judges were re­moved from of­fice for their op­po­si­tion to the death penalty. Gov. Mario Cuomo of New York lost his re-elec­tion bid in 1994 partly be­cause he was against cap­i­tal pun­ish­ment, Bright said.

Now, the pol­i­tics have shifted. Not only are Democrats more will­ing to speak out against the death penalty, but many Repub­li­cans – though not Trump – are turn­ing against cap­i­tal pun­ish­ment on lim­ited-gov­ern­ment grounds and, es­pe­cially, be­cause of high costs.

New York Times

San Quentin State Prison is home to Cal­i­for­nia’s death row. Fol­low­ing the state’s mora­to­rium on ex­e­cu­tions, Democrats run­ning for pres­i­dent em­braced abo­li­tion, sig­nal­ing a gen­er­a­tional shift for the party.

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