As contenders for the presidency tailor their campaigns to address predominately middle-class concerns — health care, the economy, Iraq — they are giving short shrift to other issues that, though pressing, fail to capture the attention of their primary demographic.
The rationale goes like this: If the core electorate — middle-class America — does not care deeply about an issue, why expend the political capital necessary to tackle it? And why risk provoking controversy?
Thus, it is of little surprise that candidates have avoided discussing the plight of inmates on death row. Although all the remaining major party candidates hold a position on the death penalty — they support it — rarely do they explain why. In fact, neither John McCain nor Hillary Clinton even mention the topic of capital punishment on their Web sites.
Such lack of concern is troubling given the persistent problems plaguing the death penalty in this country. Firstly, time and again studies show that race influences the likelihood that an individual convicted of murder will receive a death sentence. There is also evidence suggesting that the number of wrongfully convicted individuals on death row is alarmingly high. Since 1973, 125 death row inmates have been released on account of evidence overturning their convictions.
These disturbing statistics show that the death penalty consistently falls victim to arbitrariness and discrimination. It is for these very reasons that, in 1972, the Supreme Court declared existing death penalty statutes to be unconstitutional. Although the high court reinstituted the penalty in 1976 after states revised their statutes, 30 years later, there is little to suggest that the practice has improved. Capital punishment — what is becoming America’s new “peculiar” institution in the eyes of the rest of the world — remains a deeply flawed practice.
Legislation in recent decades has had the effect of only exacerbating the injustices of the death penalty. Particularly troubling has been the impact of the Anti-Terrorist and Effective Death Penalty Act (AEDPA), a law deemed by some as a more egregious assault on civil liberties than the Patriot Act. This legislation, signed into law by President Clinton, had, as one of its principal goals, shortening the time between conviction and execution for those sentenced to death. In order to accomplished this goal, the habeas corpus rights of death row inmates was severely limited.
To be sure, the law has expedited the executions of a number of rapists and murderers. But it has also had the effect of cutting short the appeals process for possibly innocent individuals — individuals such as Troy Anthony Davis.
Davis currently sits on Georgia’s death row for the murder of an off-duty police officer. Barring an extraordinary action by the President or the Georgia State Board of Pardons and Paroles, Davis will die, since the AEDPA prevents him from filing further appeals. Never mind the seven out of nine witnesses recanting their testimony against Davis since the trial, allegations of police coercion of the witnesses and the complete of lack physical evidence tying Davis to the crime.
To say that the situation faced by Davis is common would be an exaggeration. But with the AEDPA in place, it occurs more often than one may think. The Davis case should have sparked — and perhaps still can — a national debate about the unwanted consequences of federal and state death penalty laws.
Unfortunately, the candidates have failed thus far to lead the debate. McCain has never wavered in his support of the AEDPA, and Clinton has made no indication that she disagrees with her husband’s support for the law. Obama, though more ready to admit problems in the administration of capital punishment, has offered little in the way of substantive measures for remedying these problems on a national scale.
A case currently before the Supreme Court on the constitutionality of lethal injection holds the possibility of bringing the death penalty back into the public consciousness. It would be naive to believe, however, that the candidates, on their own initiative, will draw attention to a potentially explosive issue like the death penalty. Presently, there is no electoral incentive to do so.
It is therefore important that during this campaign season we force the candidates to refocus on the dismal reality of the death penalty. To challenge the view that, as Obama puts it, a community needs to be able to express “the full measure of its outrage by meting out the ultimate punishment.” Is not the true audacity of hope rather believing in — and fighting for — a community that does not have to validate itself through revenge?
Ben Jones is a first-year political-science graduate student. He is a member of the Amnesty International club at Yale.