The death penalty in America is about to become a thing of the past
Long ago in 1992, the aides of Bill Clinton, the Democratic presidential nominee, knew all about the inability of the governor of Arkansas to keep it in his trousers. The public was let in on the secret when Clinton’s former mistress, a nightclub singer of the type boys’ mothers once warned were nothing but trouble, announced their relationship.
Clinton lied. The mistress produced tapes of their intimate conversations. The Clinton camp’s fallback position that “everyone lies about sex” did not play well. Everyone may lie, but few want to be lied to, particularly when the liar is a presidential candidate asking for their trust.
Fortunately for Clinton, Arkansas had a convict called Ricky Ray Rector on death row. He had murdered a police officer and turned his gun on himself. Somehow he survived and Clinton flew back home to ensure his execution went ahead without hindrance, even though Rector was so brain damaged he could not have understood the charges against him.
I don’t think Christopher Hitchens ever lost the anger he felt at the spectacle of a white “progressive” from a state in the old Confederacy executing a black man to save his career. But smart political operators appreciated that Clinton’s “positioning” helped him become America’s 42nd president.
The 1990s seem like history now. Like an inmate on death row, the American way of death has been taking a slow journey towards its own extinction. “We are in the middle of a sea change,” Robert Dunham of the US Death Penalty Information Center told me. The number of new death sentences imposed fell sharply in 2015. Executions dropped to their lowest levels in 24 years. All the signs are pointing the same way.
Dunham turned from a lawyer into an activist when he was doing pro bono work. He found a poor Hispanic, who was not so different from Clinton’s Rector. The man had a severe mental disability and could not understand the case against him.
His lawyer could not be bothered to fight because, like Clinton, he was running for office. Dunham learned then that one of the best arguments against the death penalty was that poor clients got terrible advocates.
He never thought he would see abolition in his lifetime, but juries are refusing to pass death sentences and states are overturning old laws.
You don’t win arguments until the other side concedes ground. The biggest hint that change is coming is the second thoughts of Republicans. It turns out that there are strong conservative arguments against the death penalty. Libertarians ask: what greater instance of big government can there be than the state taking a citizen’s life?
As DNA evidence has shown that many of the executed were innocent, Christian conservatives have wondered how they can square opposition to abortion with support for the death penalty.
I have never been sure of how I would answer the question: what would you want to happen to the murderer of someone you loved? The answer that it is for society to find justice rather than the individual to demand vengeance feels bloodless.
I felt no need to protest at the execution of Saddam Hussein. The genocide of the Kurds seemed justification enough. And I doubt I would have taken to the barricades to save Fred and Rosemary West.
Long experience of state-mandated killing has allowed American abolitionists to give an answer to victims that does not sound like the platitutes of a passionless bureaucrat reading from a script.
The protracted, expensive process of appeals offers no closure, they say. The killer almost supplants the victim as defence lawyers spend years finding reasons to exonerate him. Better to lock him away and leave him to rot.
It is sometimes hard to believe in the liberal idea of progress, but now so many countries have abolished the death penalty, the only major killers left now are China, where the state uses execution to maintain the power of the communist elite, and Saudi Arabia and Iran where Koranic punishments perform a similar function for clerical elites. The US was once with them. Now it appears to be saying that it does not wish to keep such foul company.
One can become equally optimistic by looking at Britain. After Tony Blair and Michael Howard saw how successfully Clinton and his Republican rivals had exploited fears of crime, they all but doubled the prison population.
Chris Grayling, the last justice secretary, followed their lead. He was the greyest macho man you could ever meet, and the most unmanly too, because he lacked the courage to examine the consequences of his actions. He banned prisoners from receiving books and presided over a chaotic prison system disfigured by violence .
Even here, however, his successor, Michael Gove, is astonishing those who assumed he was a caricature Tory by undoing Grayling’s bad work and promising the first sustained attempt in decades to cut the prison population.
Before we get too cheerful, I should say that progress dies without political leadership . If I were Gove, I’d worry about David Cameron. Imagine one convict released early and committing a terrible offence; the right of the Conservative party demanding tough measures and their allies in the press in full cry. Would Cameron have the guts to back him?
As for the US, let us see if progress survives the 2016 election. Donald Trump is already calling for mandatory death sentences for the killers of police officers . If he or another rightwing republican nominee goes hard on crime, don’t assume the Democratic candidate would fight back. With the number of executions falling and a minority of Republicans supporting abolition, you would not need to be an exceptionally brave politician to fight, I grant you. But the democratic candidate is Bill Clinton’s wife. And no, thank you, it is not sexist to emphasise her marriage, and not only because her political career piggybacked on her husband’s.
Hillary Clinton has all his slippery willingness to say or do anything that might win an election or get herself out of a difficulty. The small stand she needs to take to encourage a growing movement against capital punishment is add her influential voice. She cannot do it.
When questioned in October, she left herself with the “political space” to make a smart manoeuvre. She said she knew the poor and the black suffered most, but for all that, she wanted to keep the death penalty for “egregious cases”.
The 1990s was long ago, I said. Not so long ago, we may soon find.
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