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June 23, 2017

"People keep voting in support of the death penalty. So how can we end it?"

The title of this post is the notable headline of this notable new commentary by noted death penalty abolitionist Austin Sarat.  The first sentence of the headline highlights an important political reality, and the commentary goes on to review recent political developments and to emphasize the political challenges that abolitionists face.  I recommend the commentary as a modern recap on the state of capital politics and as providing insights on how abolitionists can seek to develop a claim that capital abolition is not anti-democratic.  I found found this little piece of political history especially interesting:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once.  From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America’s tough-on-crime, law-and-order era.

In a few of those elections, voters have been asked only to approve technical changes in their state’s death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let’s consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back — only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

June 23, 2017 at 11:09 AM | Permalink


"But democracy is not the same as government by popularity contest or by plebiscite. It is a system of government grounded in principles of respect for equality and the dignity of all citizens. Any time an electoral action violates those principles, it damages democracy.

That is what our history teaches. The United States almost certainly would not have ended slavery or given women the right to vote if those issues had been decided at the ballot box.

And neither will this country abolish the death penalty in that manner."

I'm not sure what the "women the right to vote" thing adds here. The was decided at the ballot box. Various places passed it, Congress proposed an amendment and state legislatures ratified. Slavery is somewhat different because it is a case where an evil continued and it was an evil even if it was upheld at the ballot box. And, it would have extended longer without war. So, the message there might be that a major intervening event (WWII was a major point here for Europe) might factor in.


"Following the European example, it will do so only when politicians and judges conclude that democratic nations cannot put their own citizens to death and still be true to their own principles."

Well, that is a mixed bag since the politicians are put there by democracy and judges as well, if indirectly in various cases (especially federal judges). He is correct that simple referenda isn't the only way people act there. This is surely the case in an all/nothing way -- many states technically have the death penalty on the books, but in practice it is not used.

As an "abolitionist" (not a big fan of the word), article is a mixed bag.

Posted by: Joe | Jun 23, 2017 11:45:24 AM

I suggest hypocrisy. Europe, with it moral superiority, has hundreds of suicides and murders in prison. The risk for death by these is 10 fold for violent criminals.

End the death penalty. Fire hundreds of make work government lawyers. Go European.

Posted by: David Behar | Jun 23, 2017 11:54:52 AM

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