Asking voters is not the way to end the death penalty

Last week Oklahoma State Rep. Mauree Turner (D) made headlines when she filed legislation seeking to put abolition of that state’s death penalty on the November ballot. Turner, the state’s first Muslim lawmaker, is a community organizer with a longstanding interest in criminal justice reform.

“What I am hearing from my district, and people around the state,” Turner explained in a press release, “is an urgent need to end state-enacted murder in the name of a criminal legal system that seeks to kill people with impunity. We have seen a growing movement, in the last year especially, of people calling for Oklahoma to abolish the death penalty. And I want to give people a chance to express that on the ballot.”

Turner is right to want to end the death penalty in her state and deserves great credit for her courageous willingness to take a leading role in that effort. But, as admirable as that stance is, her strategy is not an effective way to end the death penalty.

Turner is by no means the first abolitionist to turn to the ballot box, and if she gets her way this would not be the first time that Oklahomans have been asked to vote on the death penalty.

Over the course of a little more than a century the question of whether to retain, abolish or restore the death penalty has been put on the ballot 29 times in 15 different states. Abolitionists lost 25 of those 29 contests.

That dismal record has not always been the case, but even the better eras have shown mixed results. In fact there have been two distinct periods in the death penalty’s ballot history.

Early in the 20th century, death penalty abolitionists, in whose footsteps Rep. Turner walks, were the prime movers in putting the issue before the voters. Between 1912 and 1968, that happened in 5 states: Arizona, Colorado, Michigan, Ohio and Oregon. Abolitionists secured some modest victories, prevailing in Oregon, Arizona and Michigan.

Yet in Oregon and Arizona abolition was short-lived, and the death penalty soon was restored.

Since 1968, during America’s tough-on-crime, law-and-order era, the public has been called on to vote on capital punishment 18 different times.

In contrast to the earlier period, death penalty ballot measures have not always advanced by abolitionists. On the contrary, they have often been used to advance the partisan ends of politicians seeking to show that they are tough on crime. Most often ballot measures have been proposed by those seeking to retain or reinstate the death penalty and respond to executive, legislative, or judicial attacks on it.

And in every case, since 1968, they succeeded.

Three of those cases occurred in 2016 when voters in California, Nebraska and Rep. Turner’s home state of Oklahoma were asked to decide the fate of capital punishment. 

In California, voters narrowly rejected Proposition 62, a measure that would have ended the death penalty and replaced it with life imprisonment without parole. By a similarly narrow margin they approved Proposition 66, which was designed to speed up the death penalty process by designating special courts to hear challenges to death penalty convictions, while also limiting successive appeals. Instead of ending capital punishment in California, the election results made it easier and faster to put people to death.

Nebraska voters undid the legislature’s successful effort to end the death penalty and reinstated it. Abolition had lasted for just one year. And, unlike California, the vote was not close. Death penalty supporters prevailed by a margin of 61 percent to 39 percent.

And, also in 2016, two thirds of Oklahoma voters supported State Question 776, which declared that the death penalty could not be considered cruel and unusual under that state’s constitution. It also included a provision that “any method of execution shall be allowed, unless prohibited by the United States Constitution,” making it possible for the state to employ the gas chamber, electrocution, or firing squad if lethal injection is ever declared unconstitutional.

Again, a state-level ballot question smoothed the path to state killing and gave it an aura of democratic legitimacy.

This history suggests that Rep. Turner’s desire to again put the death penalty on the ballot is not a likely route to success for those who want to end it.  

In fact, where the death penalty has been abolished, as it has been in 11 states since 2007, that result has come about when governors, legislators and judges took legislative or judicial action often in spite of public support for its retention.

The best way to end capital punishment, as Yale law professor James Whitman observes, is for government officials to “initiate abolition and slowly bring public opinion around.”

Abolition happens when those officials recognize that democracy is more than government by plebiscite or referendum. When it sentences someone to death, government claims to know, with certainty, that the condemned person committed the deed for which the sentence is imposed, the criminal is fully culpable for the harm caused, and no future version of themselves will be worthy of redemption.

That posture assigns to the government an entirely undemocratic air of infallibility and omniscience. 

Genuine democracy also demands allegiance to ideals of human dignity and equality that are its animating purposes. In this view, any decision that violates these principles is incompatible with it. Citizens and their government must respect the inherent and equal worth of each person.

A democratic state must never treat any citizen as entirely worthless. That is why our Constitution’s Eighth Amendment prohibits cruel punishment. That prohibition recognizes that no person can lose or forfeit their worth for even the most heinous and gruesome crimes.

As former Supreme Court Justice Thurgood Marshall put it, “To be sustained under the Eighth Amendment, the death penalty must ‘compor[t] with the basic concept of human dignity at the core of the Amendment’; the objective in imposing it must be ‘[consistent] with our respect for the dignity of [other] men.’ Under these standards, the taking of life ‘because the wrongdoer deserves it’ surely must fall, for such a punishment has as its very basis the total denial of the wrongdoer’s dignity and worth.”

Ending capital punishment, as Rep. Turner seeks to do, would vindicate Marshall’s persuasive vision of what the constitution commands.

But reaching that goal through the ballot box is the least likely path to success. Confirming the nation’s commitment to universal human dignity and its refusal of cruel punishment should not be left to the vagaries of a popular vote.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.