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Why the death penalty is not dead yet

Battered with bad publicity in recent years, the death penalty's public support has declined. But earlier this month when voters in Nebraska, Oklahoma and California had their say, they voted to retain and even expand it, making clear that the controversial punishment is far from finished.

But even while public support for the death penalty remains in place, the political ground underneath that support has shifted in important ways. In years past, the issue split clearly along left/right political cleavages, with conservatives favoring and liberals opposed.

Today, those fault lines are much less clear, and a bit less coherent. California, for example, a consistently blue state, embraced the death penalty in two November ballot propositions.

The shifting ground is also apparent in deep red Utah, which in 2015 approved a law bringing back the firing squad. Then a year later, in 2016, a bill that would have abolished the death penalty altogether passed the Senate and came within a floor vote in the House of going to the governor's desk.

Had that bill been passed and signed, Utah might have found itself in a position similar to Nebraska, where heavily Republican voters earlier this month rebuked a heavily Republican state Legislature by reinstating the death penalty.

In 2015, the Nebraska Legislature voted to abolish the death penalty and then overrode the veto of Republican Gov. Pete Ricketts. In Nebraska's single legislative house, 35 of its 49 members are currently Republican.

In what became an inter-party squabble, Republican Gov. Ricketts became a driving force in the ballot initiative to overturn the death penalty abolition in November of this year, donating $300,000 of his own to the cause.

In short, death penalty opponents, though discouraged by election results this year, may have more growth potential at the political right and center than is apparent at first glance. Only time will tell if those seeds bear fruit.

Strange alignments

Conservative intramural squabbles on the death penalty reflect growing skepticism about trust in government power among some conservative thought leaders, particularly the tea party wing of the party.

In 2015, conservative columnist George Will, though not a tea partier, announced his opposition to the death penalty. At the same time, Sen. Rand Paul (R-Indiana) has been an outspoken opponent of open-ended domestic surveillance programs, and Utah's Sen. Mike Lee has been been a leading advocate of reducing mandatory minimum sentences, even partnering with liberal Democrats on this issue. Both Lee and Paul are considered children of the tea party movement.

Meanwhile, in deep blue California, the voters are not ready to let go. Golden State voters went 62 percent for Hillary Clinton while also voting to legalize marijuana and regulate gun magazines. But on the same ballot they easily rejected a measure to eliminate the death penalty, while narrowly endorsing one that would speed up executions by limiting appeals.

Oklahoma voters also weighed in on Nov. 8, using a constitutional amendment to remove the death penalty from the judiciary's reach. Oklahoma had been a flashpoint of controversy in 2014 after a gruesome botched lethal injection.

An unusual spike

Since 2014, anti death-penalty advocates had felt it was only a matter of time before the opinion and policy shifted in their favor, as they rode a wave of publicity over exonerations on death row and controversies about humane lethal injection drugs.

In 2015, the Deseret News noted that "public support for the death penalty has been on a steady downward curve since it reached a high of nearly 80 percent of Americans supporting it in 1994, according to Pew Research Center data. Today, 55 percent support capital punishment, Pew found, with large variations in ethnic groups. Blacks and Latinos are much more likely to oppose it."

But looking at the larger picture over time, it seems that choosing 1994 as a starting point might muddle the picture.

According to Gallup, 60 percent of Americans today support the death penalty, the exact same percentage that supported it in 1937. In between, there have been ups and downs, ranging from a low of 42 in 1966 to a high of 80 percent in 1994.

The year 1994 was also very near the peak of violent crime in America. Violent crime rates began climbing sharply in the late 1960s and continued to push upwards, cresting in the mid-1990s before beginning a sharp downward descent that brought them down today to levels not seen since 1960.

Public opinion polls seem to clearly follow crime over that time period, with support for the death penalty spiking just after crime rises, then falling gradually as crime falls.

If this link between violent crime and public opinion on the death penalty is accurate, then the 60 percent level of death penalty support today may not be the result of a downward slide that is destined to continue. The drop may be, rather, the ebbing of an unusual dual spike upward and back down to more normal levels. Confidence that this slide will continue may be misplaced.

Possible openings

Digging a little deeper, the Gallup data yields some interesting insights into how death penalty opponents might unpack the issue to their advantage.

Since 1985, in addition to asking about support for capital punishment, Gallup has asked poll takers if they would endorse life in prison with “absolutely no possibility of parole” as an alternative to the death penalty.

Given that option, respondents in 1997 — near the peak of the crime wave — chose the death penalty by 61 to 29, compared with 80 percent who chose the death penalty in the question that did not mention other options.

By 2014, a much more narrow 50-45 were in favor of the death penalty when offered the alternative, compared with 60 percent who supported the death penalty when not offered the alternative. This indicates slippage across the board, but it also suggests openings to reframe the issue by offering alternatives.

One key question is whether people see the death penalty as a deterrent to violent crime. The shifts over time on this are quite striking. In 1985, 62 percent said yes, it was a deterrent, but supportive responses dropped steadily and by 2011, the most recent year Gallup asked the question, just 32 percent saw the threat of punishment by death as a deterrent.

In an open-ended question about why voters supported the death penalty, 50 percent in 1991 chose some variation of “the punishment fits the crime,” but that number had dropped to 35 percent by 2014.

Explanations for supporting the death penalty, which had long focused on deterrence and retribution, are now much more scattered, with no dominant answers. These changes suggest the public may have become a little unclear on its reasoning, and thus more open to persuasion.

Another opening may lie in attitudes toward false convictions. Gallup only records answers on this in 2003 and 2005. In 2005, 57 percent of respondents estimated false conviction rates at between 1 and 5 percent.

No one knows the true number of false murder convictions, as the Deseret News has noted previously, with estimates varying from a low of .33 percent to a high of between 3 and 5 percent, estimates very much in line with public perception.

It is worth noting that the Gallup survey showed few if any respondents believing that false convictions never happen. That means nearly all death penalty supporters apparently accept at least some small risk that some people will be falsely convicted and executed.

The challenge for death penalty opponents is to replace that vague statistical awareness of possible innocence with real human faces.

In Utah, such an effort is underway. Last week, Utah Conservatives Concerned about the Death Penalty hosted a forum on the death penalty featuring Ray Krone, a wrongly convicted Arizona man who sat on death row for 10 years before being exonerated through DNA evidence.

For now, polls show the traditional American consensus in support of the death penalty appears to be holding near its historic norms. But openings may exist to disrupt it from both ends of the political spectrum, and with different avenues of persuasion.