As noted in City Journal, support for capital punishment is overwhelmingly high … which is why politicians and wealthy progressives whole-heartedly oppose it. As you probably know, a “luxury belief” is one that is usually held by people who will not be in any way impacted by the downstream effects of that belief. It’s not the wealthy and privileged who suffer when murderers get out of prison, so they are generally all in favour of ever greater leniency in sentencing and easing parole conditions. Poor and middle class people are more likely to suffer when violent criminals return to their communities, which is why they generally want longer incarceration for violent crimes and favour capital punishment for certain abhorrent acts of murder. Charles Fain Lehman has more:
Those findings undermine the narrative, routinely advanced by death-penalty abolitionists, that capital punishment is on the decline because the public has turned against it. In reality, both public opinion and the current composition of the Supreme Court militate in favor of expanding the death penalty’s use — and, specifically, relaxing many of the arbitrary and undemocratic restrictions imposed on it by courts over the past several decades.
Abolitionists have based their case for declining public support on polls such as Gallup’s, which for nearly a century has asked respondents if they are “in favor of the death penalty for a person convicted of murder”. The share in favor has indeed dropped steadily since the 1990s, from a 64-point difference between support and opposition to just a 6-point split today.
That question, though, artificially reduces support by asking about all murders. Under current precedent, only certain heinous murders — those in which jury-determined aggravating factors outweigh mitigating factors — are eligible for the death penalty. There is likely far more support, for example, for executing Dylann Roof specifically than there is for executing all murderers generally.
The new MI poll illuminates this point. It asks about support for capital punishment under a variety of circumstances. The result is lopsided endorsement in the event of, for example, murder involving “extreme cruelty”, mass murder, or the murder of a child — all supported by 3-to-1 margins. Death for premeditated murder generically has 72 percent support, suggesting that even clarifying intent significantly increases support for capital punishment.
Notably, the poll also finds majority support for executing those who rape a child (71 percent) or an adult (57 percent). Yet neither offense would, absent a concurrent murder, be death-eligible. The Supreme Court ruled that applying the death penalty to non-murdering rapists violated the Eighth Amendment’s prohibition on “cruel and unusual punishment” in 1977’s Coker v. Georgia, a prohibition it extended even to child rapists in a 2008’s Kennedy v. Louisiana. With certain exceptions for crimes against the state, the Kennedy majority asserted, a crime that did not result in the taking of someone’s life was categorically ineligible for the death penalty.
Both decisions were justified by reference to the court’s “evolving standards of decency” test. First introduced in 1958’s Trop v. Dulles, the test has led the court to understand “cruel and unusual punishment” through its interpretation of “the evolving standards of decency that mark the progress of a maturing society”. That lens allowed it to reach the conclusions it did in Coker, Kennedy, and numerous other narrowings of the use of the death penalty. In combination with the aggressiveness and gamesmanship of the capital defense bar — which spends decades filing often-frivolous procedural motions to keep clearly guilty clients alive — the result has been a steady choking off of capital punishment.
Update, 31 July: Welcome, Instapundit readers! Have a look around at some of my other posts you may find of interest. I send out a daily summary of posts here through my Substack – https://substack.com/@nicholasrusson that you can subscribe to if you’d like to be informed of new posts in the future.
