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Opinion: Despite optimism by abolitionists, the death penalty isn’t on the ropes – yet

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California, where voters face two conflicting ballot initiatives over the death penalty, isn’t the only state grappling with capital punishment this election cycle.

Nebraska voters will vote on overturning a ban the state Legislature adopted last year, and Oklahoma voters are being asked to enshrine that state’s death penalty in the Ctate constitution, putting it out of reach of a legislative repeal and making it harder for abolitionists to challenge it.

How these measures will fare, of course, is uncertain (more on that shortly), but anti-death penalty advocates are feeling optimistic, with public support eroding in national polls and a continued decline in executions.

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Over the past decade, eight states have banned the practice and four others have declared moratoriums in the face of doubts by political leaders over its fairness and questions about whether the court systems can truly establish guilt. So far this year, five states have executed 17 people, the lowest total since 1991. Notably, Texas and Georgia accounted for seven each, or 14 of the 17 executions.

But the abolitionists shouldn’t feel overly optimistic. The recent drop in executions has less to do with a change in heart by the death-penalty states than with problems obtaining drugs for lethal-injection protocols and short-term freezes to review procedures in botched executions.

And, despite the spate of botched executions and high-profile exonerations, a recent Pew Research Center poll found support for the death penalty at 49%, the lowest level since the 1970s but still higher than the 42% who opposed the death penalty, the highest level in decades.

So the trends are in the right direction, but since capital punishment is a state issue, it will take more than a change in the national mood to end it. The best hope is that the Supreme Court will finally come around and recognize that the death penalty is out of synch with “the evolving standards of decency that mark the progress of a maturing society,” as the court phrased it in a 1958 decision.

More recently, Justice Stephen G. Breyer wrote in dissent in a death penalty case:

In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”

We voters have a moral choice to make.

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Then Breyer went on to say that changes that have occurred since then, “taken together with my own 20 years of experience on this Court,” led him to believe the death penalty is likely unconstitutionally cruel and unusual.

Unless and until the court follows Breyer, abolition remains a state-level fight. In California polls, a plurality of likely voters, but not the majority it needs to pass, support Proposition 62, which would end the death penalty and replace it with life without parole. Proposition 66, a complicated measure aimed at speeding up the appeals process, has more people saying they are unsure than either support or oppose it (and it should be opposed – speeding up executions will only increase the chance that the innocent will get killed). That high level of uncertainty suggests serious confusion about what exactly the initiative would do (here’s an analysis by opponents).

And that’s the more interesting part of what is at heart a test of individual morality. Even if you accept the argument that a state has the right to kill its own citizens (I don’t), you have to be certain that the state is only going to kill the guilty – the so-called “worst of the worst.” But there’s no way to achieve that.

Nationally, since 1973, 156 death row inmates have been exonerated of the crimes for which they were convicted, after spending an average of 11.3 years under a death sentence. Anti-death penalty advocates also count more than a dozen executions of people who were likely innocent of their crimes – which doesn’t include those for whom there remain significant doubt about whether they were guilty of a capital crime.

So we voters have a moral choice to make: to either support or oppose executions under a system that has been shown to be too prone to manipulation and disproportionately applied to the poor and people of color.

Scott.Martelle@LATimes.com

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