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Will a conservative Supreme Court give new life to the death penalty?

Supreme Court Justice Anthony Kennedy administers the judicial oath to Justice Neil Gorsuch. AP Photo/Evan Vucci

Will a conservative Supreme Court give new life to the death penalty?

For years now, the death penalty’s days have seemed numbered.

Death sentences and executions are in decline. And some current Supreme Court justices have been pushing the court to revisit the constitutionality of capital punishment.

But with the election of President Donald Trump, the future of the court fell into the hands of a man firmly in favor of the death penalty. Indeed, in 1989, Trump took out a full-page advertisement in The New York Times demanding blood for blood. “Muggers and murderers should be forced to suffer and, when they kill, they should be executed for their crimes,” it read.

With the recent installation of conservative jurist Neil Gorsuch on the Supreme Court and more opportunities for Trump to fill vacancies likely on the horizon, the court now seems on the verge of a rightward political turn. It now seems unlikely that it will end the death penalty anytime soon.

Has capital punishment in the United States been granted an indefinite stay?

A different path to abolition

Not necessarily. Even if the court veers right, state legislatures can still decide to abandon the death penalty if lawmakers sense a sea change in public opinion.

Right now, such a change seems unlikely. Support for the death penalty has waned in recent years, but it has not yet reached a tipping point. For example, voters in liberal California recently declined to abolish that state’s death penalty.

But the recent battle over same-sex marriage shows us that longstanding public opinion on a contentious issue can swing dramatically in a short period of time.

So what might it take for the trickle of skepticism about the death penalty to become a deluge?

Consensus against the death penalty might be achieved by making arguments that validate, rather than attack, conservative values. In recent years, a new strain of anti-death penalty conservatism – previously an oxymoron – has emerged in American political life. Groups like Conservatives Concerned about the Death Penalty make the case that capital punishment violates conservative values by pointing to “the three i’s” – inefficiency, inequity and inaccuracy.

REUTERS/Andrew Cullen

Some longstanding death penalty opponents have also changed their tune, moving from a humanitarian to a more pragmatic, fiscally conservative case against the death penalty. When cash-strapped states buckled under the financial pressure of the 2008 recession, abolitionists shrewdly began pointing to the enormous cost of maintaining the death penalty when other alternatives are cheaper.

Compassionate conservatism

But as financial pressures ease, this kind of criticism may lose its edge. Another conservative-minded approach may prove more effective in the years to come, one that appeals to hearts rather than wallets.

To many supporters of capital punishment, the value of the death penalty lies in the therapeutic closure an execution is thought to bring to those devastated by the loss of a loved one to murder. The punishment is seen as cathartic. Recently, Arkansas Gov. Asa Hutchinson cited the need to provide closure to grieving family members in defense of his plan to execute eight inmates over four days this month.

But since the 1970s, capital punishment has failed to deliver closure to families in the vast majority of capital cases, as I write in my book on the modern history of the death penalty. More than 8,000 people have been sentenced to death since 1973. Of those, 1,448 have been executed. Rather than offering the promise of certain justice, a death sentence launches a tortuous, decade-long series of appeals. In one of the pending Arkansas cases, the daughter of the murder victim has traveled to the state’s prison on four separate occasions to witness the execution of her mother’s killer. Each time, the promise of closure was stymied by last-minute stays.

Research reveals that victims’ kin suffer needlessly as a result of such uncertainty. For example, one study compared the experiences of grieving families in Minnesota, where the offenders were sentenced to life without parole, to those in Texas, where offenders were sentenced to death.

They found that grieving Minnesotans actually fared better than their Texan counterparts. The appeals process in Minnesota took two years. Their grief remained, but the resolution of the case meant that they could turn their energies toward healing. Forced to spend years in a legal labyrinth, on the other hand, Texans reported feelings of frustration, powerlessness and injustice.

In California, which has not had an execution in more than a decade, despite a death row population of about 750, a similar feeling has been in the air. Eight years ago, a bipartisan commission found that the “families of murder victims are cruelly deluded into believing that justice will be delivered with finality in their lifetimes.”

As it becomes apparent that numerous efforts to speed up executions have failed, abolishing the death penalty may become a reasonable alternative for the loved ones of murder victims seeking peace.

For years, many viewed those opposed to the death penalty as insensitive to the needs of victims’ family members. The value of life and the value of closure became locked in a zero sum game: the longer the condemned remained alive, the longer the grieving lived in limbo. As the front lines of the fight to abolish the death penalty seem poised to move from the Supreme Court to the court of public opinion, the most viable path forward for abolitionists may lie in an effort to demonstrate to Americans that the opposite is true.