Termination of the Terminator?

The Election Effect on the Future of Capital Punishment

There are a number of state initiatives concerning sentencing and drug policy reforms that might provide a sense of some voters' current views on drug crime and punishment. But I cannot recall a single election story, either at the federal or state level, in which the death penalty has been a consequential issue. (This marks a significant contrast to 2006, when a death penalty ballot issue in Wisconsin and a heated race for Governor in Virginia partially revealed the political salience of, and current attitudes on, the modern death penalty.) But even though the capital punishment has been a very quiet issue this election cycle, election results at both the national and state level will surely impact the future of the death penalty in the United States.

At the national level, if Senator Obama wins the presidency and the Democrats make significant gains in the House and Senate, I would expect certain members of Congress (e.g., Senators Feingold and Leahy) to push for some anti-death-penalty legislation in 2009. In addition, I suspect an Obama administration is likely to appoint federal judges more inclined to rigorously question state capital convictions (although a heck of a lot of federal judges already do that). I do not expect that we will see the abolition of capital punishment anytime soon, but the expected national political outcomes should further contribute to the death penalty's slow death.

At the state level, the future of the death penalty may be influenced by economics even more than by politics. During tough times, many states may be unwilling and perhaps even unable to spend a lot of resources pursuing capital convictions and death sentences. Even when done "on the cheap" with inadequate funding of defense representation and court systems, operating and defending an active and robust system of capital punishment is a very costly enterprise for state official. Outside of Texas and perhaps one or two other states, I doubt many state officials will be eager to pay regularly the high price of capital cases. And, of course, the broader political environment will shape these funding priorities: a citizenry clamoring for more public works projects (and not clamoring for more executions) makes it much easier for politicians to direct monies toward different kinds of "capital" expenditures.