Title : Under Trump, death penalty likely to remain
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Under Trump, death penalty likely to remain
The election of Donald Trump as president and the tumultuous transition of power have dominated headlines for the last few weeks. One issue, however, has not received much coverage: What is going to happen to the death penalty?
Before the election, some observers predicted that the end was near for capital punishment in this country. A Pew Research Center poll released in September suggested that public support for the death penalty has declined in recent years. According to Pew, which has measured public opinion on this issue since 1936, only 49 % of Americans now say they support execution as the punishment for murder - down from a high of 80 % in 1995. While there are still more supporters of the death penalty than opponents, this is the lowest level of support since 1971.
But in November, voters in three states chose to keep or strengthen the death penalty. In California, opponents rejected a referendum that would have abolished it entirely. In Nebraska, where the legislature recently ended capital punishment, voters chose to reinstate it. In Oklahoma - where controversy followed the 2014 "botched" execution of Clayton Lockett, who was not fully sedated during his lethal injection procedure - voters rejected criticism of the process by adding new language in the state constitution that the death penalty is not "cruel and unusual."
Not only did voters in these 3 states keep or strengthen the death penalty, the results were also not as close as predicted. In California, 54 % of voters rejected the anti-death penalty measure. In Nebraska, 61.2 % voted to reinstate the death penalty. In Oklahoma, 66.4 % voted in favor of adding the pro-death penalty language to the state constitution.
In fact, in California, voters did more than reject an attempt to abolish capital punishment. They simultaneously approved - by a slimmer margin - a different referendum, sponsored by supporters of the death penalty, providing that appeals in these cases be subject to strict time limits and restrictions on repetitive litigation. The idea is to end the decades of delay afflicting capital cases.
But these results, all pointing in one direction, are only a part of the story. The more fundamental change may occur in the Supreme Court of the United States.
After the death of Justice Antonin Scalia, the court has been split 4-4 between conservatives and liberals on many issues of criminal justice, including capital punishment. 2 justices - Ruth Bader Ginsburg and Stephen Breyer, both Democratic appointees - have declared their belief that the death penalty violates the "cruel and unusual punishment" clause of the Eighth Amendment.
That phrase is subject to changing interpretation based on our nation's evolving standards of decency and justice; Ginsburg and Breyer have written that mounting concerns about executing the innocent, along with longstanding problems with racism and poor lawyering in capital cases, among other things, have made the death penalty intolerable. Justices Sonia Sotomayor and Elena Kagan (both Obama appointees) have not yet gone this far, but each has suggested that they, too, harbor concerns about the viability of capital punishment.
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| Hillary Clinton |
If Hillary Clinton had won the election, it is easy to imagine the American death penalty having been squeezed out of existence in the next decade or so. A President Clinton would have been able to appoint a progressive replacement for Justice Scalia. A possible replacement for older conservative Justice Anthony Kennedy, now 80, would have further tilted the court's ideological balance toward the left. While this may not have resulted in any immediate change, these new Clinton appointees would presumably have been at least sympathetic to the argument that our society no longer tolerates the death penalty. Eventually, that may have been the end of the capital punishment in the United States.
A Trump presidency promises very different results. It is now Trump who will appoint Scalia's replacement, along with any other vacancies that might occur in the next 4 years. (Possible retirements include Ginsburg herself, who is now 83 and has health problems). The list of possible Supreme Court appointments issued by Trump during the election campaign is filled with pro-death penalty jurists who will be likely to reject any interpretation of the Constitution that prohibits executions.
The election of Trump has ended any chance that the Supreme Court will declare capital punishment unconstitutional in the foreseeable future. That means that opponents of the death penalty must redouble their political efforts; as the results in California, Nebraska and Oklahoma show, that will be an uphill battle. Those who oppose the death penalty have a lot of work to do.
Source: Morning Call, Tom Dolgenos, January 23, 2016. Mr. Dolgenos, who lives in Philadelphia, is a former assistant city district attorney and is a lecturer in the Department of Criminology at the University of Pennsylvania and an adjunct professor at Delaware Law School.
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