The Death Penalty and the Liberal Constitutional Agenda

Julia Azari notes something about the 2016 Democratic platform that hasn’t gotten a lot of attention:

Finally, the Democratic Party has moved left in a variety of ways. This is exemplified by the Sanders movement, but it didn’t start there. During the Obama years, the party has moved left on cultural issues like gay rights, strengthened its rhetoric about economic inequality, and changed its stances on matters of criminal justice (for example, the platform plank that promises to abolish the death penalty).

It’s worth quoting the relevant passage in full:

We will abolish the death penalty, which has proven to be a cruel and unusual form of punishment. It has no place in the United States of America. The application of the death penalty is arbitrary and unjust. The cost to taxpayers far exceeds those of life imprisonment. It does not deter crime. And, exonerations show a dangerous lack of reliability for what is an irreversible punishment.

While most of the more ambitious parts of the new Democratic agenda have little short-term chance of happening, death penalty abolition is actually a realistic goal. Historically, state practices have a much greater chance of being ruled unconstitutional when they become outliers. This is exactly what’s happened with the death penalty. While a majority of states still have it on the books, actual executions have become concentrated in a handful of mostly reactionary states. (Of the states that formally have the death penalty, 31 did not execute anyone in 2015.) The fact that Bill Clinton’s two nominees — including Stephen Breyer, by far the squishiest liberal on the Court on civil liberties issues — have essentially come out for the position that the death penalty is categorically unconstitutional is another important signal. I’m not sure about Kagan, but I would be shocked if Sotomayor wouldn’t provide a fifth vote to rule the death penalty unconstitutional. If the Democrats can replace Scalia and Breyer and Ginsburg either remain on the court or are replaced by justices who share their views on the issue, it’s possible. Not inevitable by any means. But if public opinion continues to turn against the death penalty and the practice becomes increasingly rare outside of Texas — it’s possible. And at a minimum a Supreme Court with a Democratic majority is likely to place obstacles in front of the death penalty that might act to hasten its ultimate demise.