"How to Convince Americans to Abolish the Death Penalty"

The title of this post is the headline of this New Republic commentary authored by Austin Sarat. Here are excerpts:

When New Hampshire abolished the death penalty on Thursday, the reaction to the news — at least nationally — was rather muted.  Here was a New England state, after all, whose machinery of death had rusted long ago.  “This debate has been largely symbolic, because New Hampshire has neither an active death penalty system nor any executions on the horizon,” The Washington Post reported.  “The state has only one person on death row … and last carried out an execution in 1939.”...

But there is greater significance here than it seems.  For starters, New Hampshire joins a growing trend.  Now, since 2007, seven states have abolished capital punishment by legislative action, and three by judicial decree.  (Nebraska abolished it legislatively, but voters subsequently reinstated it in a referendum.)  Four other states have a moratorium in place preventing anyone from being executed.  This period has been one of the most successful in the modern history of death penalty abolitionism.

And the politics of New Hampshire are not those of, say, Massachusetts.... While the state Senate and House are both controlled by Democrats, they needed votes from across the aisle to reach the two-thirds threshold to override Republican Governor Chris Sununu.  There are thus important lessons from New Hampshire about how abolitionists can be successful across the country — namely, by shifting the grounds of the debate so as not to be painted as soft on crime or out of touch with mainstream American values....

Traditionally, opponents of the death penalty have responded to [soft-on-crime] arguments by claiming that even the most heinous criminals are entitled to be treated with dignity or that there is nothing that anyone can do to forfeit their “right to have rights.”  Each of these arguments rejects the simple and appealing rationale for capital punishment: retribution.  But in doing so, it puts opponents of the death penalty on the side of society’s most despised and notorious criminals, of cop killers and of child murderers.  It is not surprising, then, that such arguments, while popular in philosophical and political commentary, have never carried the day in the debate about capital punishment in the United States.

New Hampshire abolitionists avoided this pitfall, changing the argument in ways that can and do appeal to a broader range of citizens.  They allied themselves with the plight of the families of murder victims.  “I am grateful to the many survivors of murder victims who bravely shared their stories with the Legislature this session, many of whom told us that the death penalty, with its requisite long legal process, only prolongs the pain and trauma of their loss,” said Democratic Senator Martha Hennessey in explaining her vote to override the veto.

They also avoided the soft-on-crime label by noting that the death penalty does not make citizens safer and that it is “archaic, costly, discriminatory and violent.”  And they enlisted conservative allies.  As one New Hampshire abolitionist said, “more conservatives than ever know the death penalty is a failed government program that does not value life, threatens innocent people, and wastes money.”

The campaign to abolish capital punishment succeeded in New Hampshire, just as it has succeeded elsewhere, because abolitionists resisted the temptation to engage with the red meat arguments of many death penalty supporters.  They appealed to American values of fairness, equal treatment, and pragmatism.  In so doing, they formed a coalition of legislators, political leaders, and citizens who shared the late Supreme Court Justice Harry Blackmun’s view that it is time to “stop tinkering with the machinery of death.”

Prior related post:

• With legislative override of Gov veto, New Hampshire formally repeals its death penalty