The Democrats have put their new majority in Congress to good use, making extensive progress on the minimum wage, national security, and student loan relief. It’s not apparent how much of their work will eventually become law, but the new kings and queens of the Hill have not shrunk from their commitment to setting the nation on a different path. Yet they have mainly done so through overwhelmingly popular measures. Even their attacks on the Iraq troop surge are more smart politics than gutsy leadership. One is left to ponder whether they have the fortitude to shape events, rather than merely be shaped by them.
On Tuesday, events in a federal court in New York City gave the 110th Congress the chance to quiet these doubts. The jury in the case of U.S. v. Ronell Wilson sentenced the defendant to death for the 2003 murder of two undercover policemen. Wilson will soon become the 47th resident of federal death row in Terre Haute, Indiana. If the Democrats are more than demagogues, they must do whatever is necessary to make him the last.
Space limitations forbid even a cursory summary of the moral objections to capital punishment. Suffice it to say that many feel that the slaughtering of our own citizens with gas, electricity, and poison might just violate the Eighth Amendment’s prohibition of cruel and unusual punishment. This instinct has only been confirmed by recent botches of electrocutions that ended with the condemned catching on fire and the increasingly insurmountable evidence that the “humane” method of lethal injection actually can be brutally painful to its victims. Whatever Dick Cheney might say, torture is not the American way, and the parallels between those practices are unmistakable.
These judgments are unabashedly subjective. However, the death penalty also has a number of opponents who cite its haphazard and substantively racist application as failing to keep the 14th Amendment’s promises of due process and equal protection under the law. Such standards have far less basis in personal opinion and are thus far more troubling when we fall short of them. An overwhelming amount of data suggests that the most important factor in determining whether or not an eligible defendant is sentenced to death is the race of his victim. The race of the alleged killer is a close second. The non-white killers of white people make up a vastly disproportionate percentage of death row populations. There is a long, if controversial, judicial tradition that a law that unduly burdens one group for no rational purpose is unconstitutional. The way in which the death penalty is used certainly qualifies.
Similar objections have been floating around for decades, and many of them contributed to the Supreme Court–declared suspension of capital punishment from 1972 to 1976. But in recent years, they have caught the attention of the American people in almost unprecedented fashion. Earlier this month, New Jersey became the ninth state—out of 38 with a death penalty statute on the books—to suspend executions over concerns about the cruelty of lethal injection. The issue is up for debate in many of the others. Concerns about racism and the risks of executing the innocent led Illinois Governor George Ryan to declare a moratorium on capital punishment in 2000, and it seems likely that this move will not be reversed. Recent polls indicate that public support for capital punishment has fallen by 10 percent since 1996. If there was ever a national consensus in favor of the death penalty, it has disappeared. The window of opportunity for real change in the way we apply the ultimate punishment is wide open.
But that window may not remain open forever. The sad reality behind the recent successes of the anti-capital punishment movement is that they were dependent upon the Clinton-era decline in violent crime rates. Those numbers are starting to creep up again. In the 1970s, we wasted the chance to permanently end this barbaric practice. The forces of history have aligned to give us a second opportunity to get it right. We cannot make the same mistake again.
The hallowed halls of the Capitol provide an ideal venue in which to get the ball rolling. The federal government is meant to set the tone and the agenda for the rest of the nation. While it is not within the powers of Congress to ban capital punishment in the states, ridding ourselves of the death penalty at the federal level and in military courts would send an unambiguous message to legislatures across the country. An endorsement of abolition would completely reframe the debate, putting supporters of the practice on the defensive. All of a sudden, the death penalty would become akin to slavery: a peculiar institution, limited in geographic scope and widely condemned. From there, complete abandonment of the practice would only be a matter of time.
Furthermore, almost half the states in the Union have made clear that they are no longer comfortable putting so much faith in such a flawed system. They are populated by significantly more than half of all Americans. Several more are primed to join them. Whether or not it is constitutional, the people have clearly signaled that they do not believe it is good policy. Why should the citizens of Massachusetts, New York, Illinois, and New Jersey pay their tax dollars in support of a law they have decided is fundamentally wrong? How can anyone justify continuing to force juries in jurisdictions that have rejected punishment to continue to consider it? Congress has a responsibility to allow these citizens to follow their consciences. Until the federal death penalty is revoked, it is shirking that responsibility.
With apologies to the late Justice Harry Blackmun, it is time for the federal government to stop tinkering with the machinery of death. There should be no place for the uncertain compromises of politics in criminal justice, and no place for doubt when it comes to legal murder. These goals may be unattainable, but that does not make them any less worthy. We must do everything we can to come as close to these ideals as possible. If the Democrats wish to display some political courage—and, incidentally, do the right thing at the very same time —this is the area to do it in.