So many death penalty debates ask: is the death penalty a reasonable punishment for murder? Americans have already answered this question with a resounding ‘Yes.’ According to a 2010 Gallup survey, 64% of Americans support the death penalty, while only 29% oppose it. Yet, in evaluating the death penalty, we should be asking a more difficult question: can the government be trusted to execute only guilty people?

The death chamber at Southern Ohio Corrections Facility

The Troy Davis case and too many others lead me to say no. The question of the reasonableness of capital punishment thus becomes irrelevant. If we believe there is a real chance states will execute innocent people, we have to end the death penalty.

In his Sunday Washington Post op-ed “Only conservatives can end the death penalty,” E.J. Dionne presents some interesting data regarding support for the death penalty. He writes:

“Gallup polling shows that support for capital punishment drops sharply when respondents are offered the alternative of ‘life imprisonment, with absolutely no possibility of parole.’ When Gallup presented this option in its 2010 survey, only 49 percent chose the death penalty; 46 percent preferred life without parole.”

Eliminating the death penalty, then, appears possible. Two things must occur to make the possibility a reality.

First, the life without parole sentence should be designated as the alternative to capital punishment. Presently, juries frequently must decide between sentencing a defendant to death or to life without parole. In the absence of the capital punishment option, juries may in turn see their sentencing options as life without parole and life with the possibility of parole. A life sentence with the possibility of parole is often too light a punishment for murder. In a recent editorial titled “The Misuse of Life Without Parole,” the New York Times cites the recommendation of the American Law Institute that prisoners sentenced to life in prison be considered for parole “within 15 years, with the expectation that many will ‘never regain their freedom.’” 15 years in prison instead of a death sentence is unacceptable. If the death penalty is abolished, life without parole, not simply life, must replace it. A danger exists that over time, as the death penalty fades further into history, sentencing will inevitably become lighter when the maximum punishment is lighter. The life without parole sentence must become more common and stay that way if the death penalty is to be abolished.

But how can the judicial system ensure that life without parole effectively replaces capital punishment? Mandatory sentencing rules, which infringe on often justified exercises of judicial discretion, are not the answer. The best solution would be to maintain non-binding sentencing guidelines and educate juries about their sentencing options, specifically about when a convicted person could win parole. The fact that a commanding majority of Americans currently favors the death penalty speaks to the American reverence for law and order and stiff penalties. While juries can do much to ensure life without parole rather than life with parole replaces the death penalty, guidelines issued by judges could further establish life without parole as a highly reasonable sentence in murder cases. Juries are typically not shy to hand down the life without parole sentence, a tendency that led the New York Times to publish the editorial discussed above.

Secondly, enough conservatives must pick up the abolition mantle to make life without parole a more popular punishment for murder than death. Conservatism and opposition to capital punishment are in many ways naturally compatible. As Dionne points out, if the “majority is open to persuasion, the best persuaders will be conservatives, particularly religious conservatives and abortion opponents, who have moral objections to the state-sanctioned taking of life or see the grave moral hazard involved in the risk of executing an innocent person.” Republicans such as myself, who tend to see government as minimally competent and often untrustworthy, should not trust the government to exercise the death penalty fairly. Many Republicans most likely support the death penalty simply because their party does, but if conservatives debate their religious, moral, and political concerns about capital punishment more often, many Republicans could become death penalty opponents.

Wrongful death sentences today may just become wrongful life without parole sentences in the future, but advances in forensic science always promise to exonerate innocent people, and those people can only be freed if they are still alive.

Abolishing the death penalty would be a victory for justice. We can make it happen soon.

Photo Credit: Newsday.com

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