How to Understand the Death Penalty Cheers

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Few moments in the early going of the 2012 campaign have sparked as much introspection and division as the applause from a California crowd in response to Brian Williams' question about the death penalty in last week's MSNBC debate. Opponents of capital punishment have already used the incident as a sign of conservative bloodthirstiness, and leading liberal websites have used it to spawn email blast campaigns demanding further questioning on the subject.

Other commenters have weighed in on the morally questionable aspects of the apparent rejoicing. Catholic Washington Examiner journalist Tim Carney pronounced the applause "creepy." Orthodox Christian Rod Dreher described the cheering as a "vile, repulsive thing." Blogger E.D. Kain used the incident to suggest "the modern Republican party is not only intellectually bankrupt, but morally bankrupt as well."

There are a number of obvious explanations for the applause. Throughout the evening, the overwhelmingly Republican audience seemed palpably frustrated with the questions from Williams and Politico's John Harris, who seemed more focused on political scooplets and prodding on minor questions. The moderators failed to ask even one question about Iraq or Afghanistan, Medicare or Medicaid, or how the candidates would go about creating jobs and turn the economy around if elected.

When the dour question from Williams to Gov. Rick Perry -- framed as "Have you struggled to sleep at night with the idea that any one of those might have been innocent?" -- sparked applause, the NBC anchor displayed palpable shock. He practically begged Perry to engage in some kind of criticism of the audience, which of course did not follow.

For many people of faith who support capital punishment, there is little moral question about the purpose or appropriateness of its application, mostly due to beliefs that have existed since the Pentateuch. As evangelical scholar Walter Kaiser, the former president of Gordon Conwell Theological Seminary, wrote in his book Old Testament Ethics:

So sacred was life, and that all violent forms of snatching it away caused guilt to fall upon the land - whether in a manslaughter case or that of premeditated murder - and must lead to yielding up another life. In the case of premeditated murder, there would be no atonement, that is "substitute" or "ransom," for the life of the murderer (Num. 35:31). Genesis 9:6 would explain why this is so ["Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man."]. This one capital offense required the death penalty, but was unlike the other crimes that also had a capital punishment which allowed substitution. It was because humans are made in the image of God that capital punishment for first degree murder became a perpetual obligation. To kill a person was tantamount to killing God in effigy.

Whether those in the audience believe this or not, it's likely the applause is more accurately read as support for capital punishment properly applied-both for its utility as a deterrent force and defense for civilized society, both ethical and moral roles of government.

The irony here is that while it's true Perry, the nation's longest serving governor, has presided over more executions than anyone in the modern era, the number of Texas death sentences have actually declined under Perry to historic lows. This is due to a number of factors, but key among them has been Perry's decision to support allowing juries to consider life without parole as an alternative sentence, a bill he signed into law in 2005.

Adding this option has given courts an option short of capital punishment, and one they are more comfortable with in the wake of a number of cases where DNA evidence has exonerated those on death row. Creating this alternate path, which already existed in most other states with capital punishment, has served to accelerate a trend begun ever since Perry became governor. According to a report by the Death Penalty Information Center in Washington, while Texas had averaged 34 death sentences per year in the 1990s, beginning in 2000, death sentencing declined to the 20s, and as of FY 2004-2005, it dropped into the teens. The latest DPIC report, issued in 2010, notes that "For the second year in a row new death sentences in Texas (8, as of mid-December) were 80% less than the peak experienced in 1999, when there were 48."

In the decade under Perry's reforms, Texas has reduced its role as an outlier, coming more in line with national trends, with a more careful and sparing invocation of capital punishment. The death sentence is still used -- as divisive as the capital punishment may be among some corners, the overwhelming majority of Americans support it -- but with a much heavier emphasis on the need for multiple eyewitnesses and solid evidence.

Yet while this seems a rational approach, death penalty opponents and civil libertarians would like to push the policy much further. They have made martyrs of some who were executed in this time period, particularly in the case of Cameron Todd Willingham, executed for the deaths of his three daughters-a two-year-old and one-year-old twins. Willingham, a cause celebre for death penalty opponents, has already received plenty of national attention; The New Yorker published a lengthy piece arguing that Willingham was an innocent man. The piece was impressively written, and ended on this note:

Just before Willingham received the lethal injection, he was asked if he had any last words. He said, "The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God's dust I came and to dust I will return, so the Earth shall become my throne."

This is certainly moving stuff. But as Dave Bry pointed out at The Awl, this is hardly the full story of what Willingham said. In fact, he followed these lines with an expletive laden rant at his ex-wife, the mother of his children, expressing his desire that she "rot in hell."

The local news source in the area, The Corsicana Daily Sun, has a wealth of meticulous and detailed reporting on the Willingham case. Curious individuals can read the coverage and understand which questions are at issue and which are not, or watch this local news report on the controversy.

Willingham personally rejected the offer by prosecutors of a guilty plea and life in prison, and even afforded all due process under law, was still found guilty-not as an arsonist, but as a multiple child murderer. (For some perspective on how lengthy this process is, as attorney Andrew Grossman pointed out, the minimum steps required for a Texas execution are: trial, appeal, appeal, appeal, habeas, appeal, appeal, fed habeas, appeal, appeal, execution). What's more, the Texas Board of Pardons and Paroles declined to recommend clemency to Perry, a requisite step for pardoning-meaning that the most Perry could've granted in Willingham's case was a single 30 day reprieve.

Yet the policy question, separate from the Willingham case, is this: how should governors respond to such cases? Should they overrule judges and juries, or should they allow their rulings to proceed absent incredible exculpatory evidence? Or should they just stall, saving the hard decisions for others?

Consider California as a firm believer in this last option. There are currently more than 700 people on death row in California, but only 13 have actually been executed in the past 35 years. During that period, 56 have died of old age, suicide, or illness while on death row-indicative of a political system unwilling to consider capital punishment as having the force of law. According to DPIC, California ranks as one of the lowest states in terms of the number of death penalty sentences actually carried out-the highest ratio is not Texas, but Virginia.

In California, of all states, those who favor the death penalty are frustrated by an unwillingness to actually use it. The most recent California execution was in 2006, of a convicted triple murderer who had already been serving a life sentence at the time. In a nation founded on the rule of law, not men, this incoherence breeds discontent and frustration at lax responses to spilled blood.

Understand this, and you begin to understand the applause.

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