The Death Penalty Thrived at the Ballot Box, but It’s Still Declining

When voters took to the polls on Tuesday, there wasn’t a major party presidential candidate on the ballot opposed to the death penalty. That’s not unusual, and although Barack Obama has called it “deeply troubling,” the 44th president also supports capital punishment, as has every commander in chief before him.

In spite of its declining public support, a majority of Americans still favor capital punishment as well. That majority was reflected in Nebraska, California, and Oklahoma on Tuesday, when voters passed pro–death penalty measures in all three states.

In Nebraska, voters brought back capital punishment just a year after state legislators repealed it. In California, a measure to repeal the death penalty failed, while another proposition that alleges to speed up the execution process passed. Meanwhile, Oklahoma became the first state to amend its constitution to protect the death penalty, declaring it legally impossible for state courts to consider it cruel and unusual punishment.

Considered together, the ballot measures seem to strike a heavy blow against the decline in use and popularity of the death penalty—but experts caution against reading too much into one election’s outcome.

“Certainly it would have been significant if we had won all or any of these ballot initiatives, but these were a point along a broader continuum,” said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty. “These ballot initiatives are not the whole story.”

Though the movement to end the death penalty was dealt a setback on Tuesday, Rust-Tierney urges onlookers to consider the path of another progressive movement: the ultimately successful fight to legalize same-sex marriage. Progress was made state by state, starting with a 2003 court ruling in Massachusetts that legalized same-sex marriage. Yet that victory was followed by a rash of policy obstacles in other states, as state constitutions were reactively amended to define marriage as between a man and a woman. After many gains and setbacks, 12 years later, the Supreme Court issued a ruling legalizing same-sex marriage nationwide. What mattered, Rust-Tierney said, is that the movement “kept moving forward.”

In California, where voters not only rejected capital punishment’s abolition but voted to speed up the process, Elisabeth Semel believes that what appears at first glance to be support may be indicative of confusion. Semel is the director of the Death Penalty Clinic at the University of California, Berkeley, School of Law. Proposition 62, which would have eliminated the death penalty, was opposed by 53.9 percent of California voters. Proposition 66, which imposes time limits on the death penalty appeal litigation process, won narrowly with support from 50.9 percent of voters. Semel, who opposed Prop. 66, told TakePart that the law imposes “absolute disregard for due process.” But she thinks its success reflects the cumbersome nature of the ballot initiative rather than a surge in death penalty support.

“As I talked to [voters] who were not lawyers, I found they generally understood Prop. 62 but were absolutely flummoxed by 66,” she said. “Some of them thought, ‘Well, if we can’t get rid of it, perhaps we can remedy it,’ without understanding the particulars of the initiative.”

Though Semel acknowledged that clearly Californians are “not universally in support of repeal,” she anticipates that the “chaos” in the courts that will result from Prop. 66 will surprise some voters who supported it without understanding the complexity of the law. “If you look at other things Californians support in terms of transparency, this is a provision that will accomplish the opposite,” she said. “I don’t think it’s necessarily a fair measure of where people stand.”

In spite of the losses at the ballot box on Tuesday, Rust-Tierney expects the downward trends in capital sentencing to continue. As a report published in October found, less than 1 percent of counties where capital punishment is legal still frequently impose death sentences. While nearly half of Americans still support the death penalty, that support is the lowest it has been in more than four decades, according to Pew Research Center—a trend that isn’t likely to reverse overnight.

“One step forward, two steps back is not the end of the race,” said Rust-Tierney. “Now is the time to redouble our efforts.”