JURIST Guest Columnist Jeffrey L. Kirchmeier of CUNY School of Law discusses the death penalty and the 2016 election…

Commentators will be debating the causes and impact of the outcome of the November 8, 2016 US presidential election for a long time. But other ballot issues also revealed, to some extent, the mood of the country.

Several state elections featured issues related to criminal justice reform. While there were some successes for advocates of reform, including more states legalizing marijuana, one area where voters seemingly rejected progressive reform was on capital punishment. In three states, a majority of voters embraced the death penalty.

One may wonder whether these death penalty votes constituted a watershed moment for the US death penalty. In recent years, the death penalty has been in decline across the country for various reasons, with several states abolishing the death penalty and the number of executions decreasing. In determining whether or not this election marked a turning point for the decline of the death penalty, it is important to consider our most recent election in historical context.

The Death Penalty on the Ballot

In the 2016 election, California voters rejected Proposition 62, which would have replaced the state’s death penalty with life without the possibility of parole as the maximum punishment for murder. Voters chose to retain the death penalty by a vote of 53.6% to 46.4%. In 2012, a similar measure failed by a narrower margin of 52-48%.

In the 2016, election, though, California voters not only rejected the proposition to eliminate the death penalty, they also voted for another proposition promoted as streamlining and speeding up the death penalty process, Proposition 66. This proposition passed by an even narrower margin with only 51.3% of the vote.

Proposition 66 will set a time frame for review of death penalty cases and also require appointed attorneys to work on death penalty cases. The proposition’s critics, however, argue that a law that limits review and the ability to present new evidence likely will result in more errors, more wrongful convictions and more legal challenges.

Unlike the California voters, voters in Nebraska not only chose to keep the death penalty, they rejected a vote by the Nebraska Legislature to abolish the death penalty. In 2015, legislators voted to abolish the state’s death penalty. Following a veto by Republican Governor Pete Ricketts, Nebraska’s unicameral legislature voted 30-19 to override the veto.

Thus, Nebraska was on the cusp of joining several states that have abolished the death penalty since 2004. But Governor Ricketts did not give up, helping launch a campaign for a statewide referendum on the death penalty. It was the resulting referendum that won on November 9, 2016, as Nebraskans voted by a 66-34% margin to keep capital punishment in the state.

The vote appeared to be a strong embrace of the death penalty, perhaps partly symbolic. Nebraska has only executed three people since the US Supreme Court upheld new death penalty laws in 1976 and only ten men sit on Nebraska’s death row. The last execution in the state was nearly two decades ago in 1997.

Meanwhile, in Oklahoma, voters in the November 2016 election overwhelmingly chose to add language to the state’s constitution stating, among other things, that “[a] sentence of death shall not be reduced on the basis that a method of execution is invalid.” One of the concerns that prompted advocates of Oklahoma State Question 776 was a number of problems that the state has encountered with lethal injection.

For example, in 2014 a botched execution led to a temporary moratorium on executions in the state. Lethal injection errors during scheduled executions in 2015 led the state to plan to use nitrogen gas for future executions. The new language in the state constitution will not solve the problems that Oklahoma and many other states have faced with execution methods. And the new proposition may lead to other legal challenges. But the vote did show that a majority of the state’s citizens wanted to keep trying.

Impact and Meaning

Although the November 2016 election may eventually lead to more executions, the immediate impact will not be a significant rise in the use of capital punishment. Oklahoma was not considering abolishing the death penalty and Nebraska and California rarely use capital punishment, with California’s last execution in 2006. Donald Trump’s election may affect the death penalty in a number of ways, including the likelihood that he will appoint US attorneys who will more actively seek the federal death penalty than the attorneys did under President Obama.

Yet, considering the death penalty in its historical context, the 2016 election does not appear to be a turning point for capital punishment in the United States. As I explained in my book on the history of the death penalty, Imprisoned by the Past, there have been several periods of death penalty abolition in US history, including 1846-1853, 1907-1917, 1957-1965 and the current period starting around 2004. By contrast, there also have been periods where states reinstated capital punishment, including roughly around 1916-1920 and 1972-1979.

Reflecting on the fact that death penalty reinstatement periods often follow abolition periods, one might surmise that the 2016 election marks such a turning point or a “comeback for the death penalty.” Yet, although the results in the three states — and the election of death penalty advocate Donald Trump as president — may lead one to conclude that the death penalty is on the rise in the United States, the truth is more complicated when considered in context. For example, the governor of Washington and the governor of Oregon, who both have enforced moratoriums on executions, each won reelection.

Similarly, voters seemed less eager about the death penalty in some significant district attorney races. For example, Andrew Warren won against the incumbent district attorney in Hillsborough County, Florida as he promised to curtail the use of the death penalty. Voters in Jefferson County, Alabama voted against an incumbent who often sought the death penalty, instead opting for Charles Todd Henderson, who is personally opposed to capital punishment.

More significantly, in the November 2016 election, only one state, Nebraska, voted to overturn a legislative decision to abolish the death penalty. Yet, the fact that Nebraska and California were even considering abolishing capital punishment is more likely a part of the current abolition trend rather than a new trend. Historical abolition trends do not occur when every state abolishes the death penalty. The abolition of the death penalty is a slow process taking place one state at a time.

Nebraska is generally considered to be a conservative state that one might not expect to be a leader in abolishing the death penalty. Yet, conservatives are increasingly becoming concerned with the problems with capital punishment and Nebraska’s legislature voted overwhelmingly to abolish the death penalty. A number of Nebraska voters did too. California is often seen as progressive, but it is a large state with a diverse pool of voters. Yet, it still came within four percentage points in recent years of abolishing the death penalty.

So, while the three votes in favor of capital punishment could be seen by some as part of a turning point regarding the death penalty, the election itself is not a strong enough indicator of a change in attitudes about the death penalty. The current abolition period is significantly different from past abolition periods. Because of the difference, the current period may be more lasting than past periods.

There are a number of reasons the current period is different from past short-lived periods. For example, there are more states today without the death penalty than in any other time in US history. Considering that the Delaware Supreme Court recently held that state’s death penalty unconstitutional, there are nineteen states and the District of Columbia without the death penalty. Four other states have moratoria on executions. Since 2004, seven states have stopped using the death penalty by either legislative or judicial action. The areas of the country that do use the death penalty are mostly limited to a relatively small number of counties in the US, while the number of executions in 2016 will be the lowest since 1992.

One difference between the current abolition period and the periods of the past is that through resources like the Internet, citizens today have much more access to information about capital punishment’s failings, financial costs, unfairness and other problems. DNA evidence and studies continue to reveal wrongful convictions and racial disparities in capital sentencing. Although a majority of voters in Nebraska, California and Oklahoma did not believe the death penalty should be abolished, nationwide support for the death penalty continues to drop.

Education contributed to the abolition of the death penalty in the last decade in states such as New Jersey, New York, New Mexico, Illinois, Connecticut, and Maryland. Those states show a more significant trend than the November 2016 election does. Progressive causes do not advance in a straight line, and the November 2016 death penalty ballot issues most likely will be seen by historians as a digression on the road toward abolition of the death penalty instead of a historical crossroads.

Jeffrey L. Kirchmeier is a Professor of Law at City University of New York School of Law. He teaches courses on criminal law, criminal procedure, capital punishment, lawyering and appellate advocacy. He is the author of “Imprisoned by the Past: Warren McCleskey, Race, and the American Death Penalty” (Oxford University Press), which was released in paperback in November 2016.

Suggested citation: Jeffrey L. Kirchmeier, Crossroads or a Curve: The Death Penalty and the 2016 Election, JURIST – Academic Commentary, Dec. 7, 2016, http://jurist.org/academic/2016/12/Jeffrey-Kirchmeier-Death-Penalty.php.