The 2020 presidential candidates say they want to end the death penalty. If only it were so simple.
Several Democratic presidential contenders have taken to Twitter recently to express their enthusiastic approval of California Gov. Gavin Newsom’s (D) announcement earlier this month that he plans to suspend executions in the state.
“Inspired!” said Sen. Cory Booker (D-NJ), calling the death penalty “immoral” and “ineffective.” Sen. Kamala Harris (D-CA) wrote that capital punishment is “immoral, discriminatory, ineffective, and proven to be unequally applied.” And Sen. Bernie Sanders (I-VT), said the announcement was “very good news.”
Ending the death penalty is one of the few issues that has received the unanimous support of the current field of Democratic presidential candidates. It hasn’t always been so.
Former President Bill Clinton, a supporter of the death penalty during his presidency, was roundly criticized while he was governor of Arkansas for carrying out the execution of Ricky Ray Rector, a mentally ill black man. Former President Barack Obama called the death penalty “deeply troubling” but still supported its use in the United States.
Even during the last presidential cycle there was no consensus among Democratic presidential contenders on the issue. When the Justice Department announced it would seek death for Charleston shooter Dylann Roof, Hillary Clinton said she supported the decision, meanwhile Sanders — who was running against her in the primaries at the time — said he was opposed.
It reflects how dramatically, and how rapidly, views on the issue are evolving. “Clearly, the politics of death have changed in the last 20 years,” said John Blume, director of the Cornell Death Penalty Project.
Those changing politics, he said, are due to the rising cost of sentencing someone to death, the thousands of exonerations, and stories in recent years about botched executions. “I’m not sure we’re at the end of the line with the American death penalty, but you can see the finish line,” Blume said.
But experts say the conversation about the death penalty following Newsom’s announcement has been simplistic, focusing too much on politics and not enough on policy.
“I think that with the attention that the moratorium imposed by Governor Newsom has attracted, there has been almost a media feeding frenzy about the impact on the death penalty on the 2020 election,” Robert Dunham, the executive director of the Death Penalty Information Center (DCPI), told ThinkProgress. “I love talking about the death penalty, but as a practical matter, it’s not going to affect the election.”
“The better thing to be thinking and talking about, is the whole concept of the exercise of federal power in the administration of criminal laws,” said Robert Dunham, executive director of the Death Penalty Information Center.
As of July, across the United States there were 2,738 people on death row, according to DCPI. There are just 63 people on federal death row, less than 2 percent of the death row population.
California had 737 people on death row ahead of its moratorium. Florida has 353, Texas has 232, and Alabama has 185. “A federal moratorium doesn’t change any of that,” Dunham said. “The death penalty is largely a creature of state law.”
He said the most notable aspect of the federal death penalty is that it is disproportionately used in states that either don’t have the death penalty or that have a moratorium on capital punishment.
“I think the better thing to be thinking and talking about, is the whole concept of the exercise of federal power in the administration of criminal laws,” Dunham said. “You see the use of the federal death penalty as a way to disrespect state judgements that the death penalty is an inappropriate punishment.”
Beyond that, the death penalty is “a canary in the coal mine of criminal justice,” according to Dunham, who added that a conversation about the death penalty that doesn’t include comprehensive reform is futile.
“When it’s about politics, you have broad statements about narrow practices,” he said. “When counties, states, and countries adopt meaningful criminal justice reform, the use of the death penalty drops, and when counties, states, and countries look at abuses in the use of the death penalty, they discover that everything that is wrong with the rest of the criminal justice system is worse when it comes to capital punishment.”
Blume, the Cornell professor, used another metaphor: Sometimes talking about the death penalty is like the “tail wagging the dog.”
“Death penalty elimination is only a piece of a larger, needed conversation about criminal justice reform,” he said. “Thousands — millions — of people are doing life sentences or the equivalent, many of them for crimes where punishment is too harsh. Millions of people are incarcerated for low level drug offenses. There has been some movement on the latter, but there really hasn’t been a comprehensive criminal justice reform.”
On the other hand, Blume argued, letting the tail wag the dog — starting comprehensive criminal justice reform with abolishing the death penalty — could create the necessary space to rebuild the system.
And, certainly, in an effort to shift the conversation presidential candidates often weigh in on issues they wouldn’t have much power over if elected as president, something Blume said is worth acknowledging in the capital punishment debate.
“If the president of the United States suspended the federal death penalty or commuted sentences… it would not be insignificant. It would be an important statement,” Blume added. “It might help push some states who are now effectively abolitionist… to go ahead and repeal.”
And it’s certainly a conversation worth having. A DCPI report from two years ago found that in 2017 there was significant evidence of mental illness, brain damage, intellectual disability, severe trauma, or possible innocence in nearly 90 percent of capital punishment executions in the United States.
The report also found that five of the 23 people executed by the state in 2017 received “glaringly deficient legal representation” or were denied substantial judicial review.