Hopes that the U. S. Supreme Court would strike another and near-fatal blow against the death penalty this year manifestly will not be realized unless a couple of the justices surprise us. Justice Antonin Scalia's summation last week about the lack of cruelty in the poison cocktail that is commonly and often bunglingly used to execute people seems likely to prevail. The Bill of Rights, Scalia deadpanned, does not say that you can't make a condemned man or woman endure lots of pain.
If the Supreme Court were to rule the cocktail cruel and unusual, as a few courts have done, executioners would have to fall back upon a painless barbiturate used to put down pets, and no correction department wants to do that.
But even the court majority's last stand for barbarity will not change the fact that the death penalty is on its way out in the last Christian nation, as a few religionists call us, to employ it. We share the honor now with Iran, Sudan, Iraq, Pakistan and China, which with the United States account for nearly all the known state executions in the world.
Before many years, the Supreme Court will recognize the humanity of the rest of the civilized world as common law and stop the state of Texas from killing anyone else, but by then the practice will have ended nearly everywhere else.
That is the way the winds of justice and public opinion are blowing. The New Jersey legislature outlawed the death penalty last month, the 14th state to do so, but it was largely symbolic because the state had not executed anyone in 44 years. One house or the other in New Mexico and Montana voted to abolish the death penalty, and the unicameral Nebraska legislature came within one vote. Even in states where the death penalty is still the law it is rarely if ever used. Nearly every year since 1999 the number of executions has declined. In 2007, there were only 42 executions in the United States, 26 of them — 62 percent — in Texas. Even there executions are on the decline.
Even in Arkansas, where some 36 are on death row, legislative majorities have narrowed the application of the penalty.
Public opinion has gravitated gradually away from the death penalty, although the Gallup Poll still shows more than six in 10 favor it, unless killers could be kept in prison for life, in which case slightly fewer than half would find the death penalty moral.
Part of the growing reluctance arises from the relentless stories of innocent men and women being freed after serving many years on death row owing to exculpatory DNA evidence or revelations of police and prosecutor misconduct. After the Supreme Court ruled that executions could be lawful again in 1973, the process involved longer and longer delays and redundant appeals that stretched to more than a decade. But it was evidence not of a disregard of crime or unconcern for victims but of a deep moral ambivalence about executions that troubles the legal system, religion and all of our society.
Sure, executions may still be a popular vote getter — but in narrowing political quarters probably. Our favorite son for president has employed it all fall, though to what result we cannot be sure. Ever sinceMitt Romney and bloggers attacked Mike Huckabee for turning loose rapists and killers and granting clemency and pardons to more than a thousand men, Huckabee has boasted repeatedly that he oversaw the executions of many people in Arkansas, proving that he was no softie. Before a Beverly Hills fundraiser last month, he told reporters: “I carried out the death penalty 16 times, more than any other governor in my state's history.”
That sounds dubious — Gov. Jeff Davis bragged of having seven men hanged in a single day in 1902, more than double Huckabee's highest one-day toll — but Huckabee may actually have checked his facts for a change. Let us grant him the credit for having the bloodiest hands. Jeff Davis never got to execute a woman. The only woman ever executed in Arkansas died wretchedly on Huckabee's watch in 2000. (They couldn't find a vein in her elbow that would take the poison.)
Huckabee actually makes the moral case against the death penalty more eloquently than anyone else but without closing the equation. We must value every human life, no exceptions, as if it is the life of all, he says. But when he is asked what Jesus would say about the death penalty, he cracks a joke or avers that Jesus must have thought it was good or else he would have objected to being crucified.
The Arkansas Coalition to Abolish the Death Penalty will present Gov. Beebe with petitions asking him to continue the current moratorium and appoint a commission to study the consequences of the death penalty and whether and in what way it should be continued. Something tells me he will do it. When the moratorium is lifted it will not be long before he will have to fix an execution for Damien Echols, a young man whose only crime for all that we can be sure was that he happened to be a weird kid in a town that needed to slake its horror for the unspeakable and mysterious murder of three children. By his own account, Beebe knows something about being a misfit kid.