Garrett Epps: The machinery of death is back on the docket
Historically, moratoriums on executions within particular jurisdictions are often followed by abolition, as the community comes to realize that it can survive without the death penalty. California, of course, has already gone more than a decade without executions, but it seemed possible that executions would resume, given the success of a recent California initiative to accelerate executions and the establishment of a new execution protocol. Newsom’s decision to scrap that protocol and dismantle the execution chamber represents a more definitive move against the death penalty than the informal moratorium.
Newsom’s decision brings into focus the extraordinary pathologies of the American death penalty—its arbitrariness, discrimination, extravagant costs, and proneness to error. Removing more than a quarter of the country’s death row from the risk of imminent execution may cause other political leaders, including legislatures and executive officials, to reexamine their policies. California’s suspension of the death penalty also provides momentum for judicial intervention: As the footprint of the American death penalty continues to shrink (at present, there are only a few dozen executions a year in response to more than 15,000 homicides), it becomes less plausible to believe that the death penalty serves any social goals, particularly deterrence. From a constitutional perspective, when the death penalty cannot be tied to any social good, its imposition by definition becomes unnecessary and excessive.
In his announcement, Newsom highlighted more than just pragmatic reasons for jettisoning the death penalty. Like the California Supreme Court in 1972, Newsom pointed to the barbarity of the practice, insisting that it denies human dignity and is inconsistent with a civilized society. That sort of categorical rejection of the practice—and the emphasis on human dignity—has been marginalized in American discourse in recent decades, even as it stands as the most prominent argument for abolition outside the United States. In this respect, Newsom’s actions might renew domestic interest in the claim that no civilized nation should take the lives of its own people.
Read: The enforcers of the death penalty
Bold leadership on a topic as contentious as the death penalty always risks popular backlash. The California Supreme Court’s headline-grabbing rejection of the death penalty back in the 1970s was met with almost immediate reinstatement of capital punishment. And the U.S. Supreme Court’s landmark invalidation of the death penalty in 1972 provoked 35 states and the federal government to pass new capital statutes over the next four years, leading the Court to backtrack and reinstate the death penalty in 1976.
Past isn’t always prologue, though; there’s reason to be optimistic today. When the California and U.S. Supreme Courts struck down the death penalty almost 50 years ago, capital punishment had been largely unregulated. The backlash in the early 1970s depended largely on the view that new energy and attention to the death penalty could rescue it from its manifest and manifold problems.