Death penalty opponents in the United States have become optimistic of late, even cheerful. Support for capital punishment has declined to 64 percent, according to Gallup, the lowest rate since the 1960s. New Hampshire will look at a bill repealing the death penalty this year, and earlier this week, the Illinois State Legislature passed one, which awaits the governor’s signature.
But Jared Loughner, the Arizona shooting suspect, presents a problem for the death penalty opposition. Prosecutors will likely seek execution in his case and, with that leering mug-shot smile plastered all over the news, Loughner is perhaps the most unsympathetic defendant in a high-profile murder case since Timothy McVeigh.
After the Oklahoma City bombing in 1995, popular support for the death penalty rose to a historic high of 80 percent, and states and the federal government went on what opponents see as something of a binge of death sentences and state-sponsored executions. About a decade ago, public opinion began to shift back, thanks to successful moral activism especially on the part of Roman Catholics, not least among them Pope John Paul II; growing evidence that innocents had been executed; and convincing arguments about the high cost of the death penalty together with its ineffectiveness as a deterrent. In 2010, states executed half as many people as they did in 1999. Opponents now express concern that the Loughner trial will roll back, or at least stall, the progress they’ve made.
“We’re not going to make a big case about Loughner and say he shouldn’t get the death penalty,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. “People don’t want to talk about the human spark in this defendant.”
To oppose the death penalty in the face of an inhuman-seeming killer requires one to separate higher principles from human passions and case-by-case particulars—not an easy thing when confronted daily with the details of a brutal murder. In Arizona, as in the rest of the country, people support the death penalty, but with less enthusiasm than they have in the past. According to a 2007 study by the Phoenix-based Behavior Research Center, 56 percent of Arizona residents support the death penalty, down from 64 percent in 2000—and, perhaps more interesting, 16 percent said “it depends on the circumstances,” up from 10 percent.
Support for the death penalty traditionally spikes after a monstrous crime.
But Loughner touches a nerve, not surprisingly, and death penalty opponents expect support for his execution to be high. Dan Peitzmeyer, president of the Arizona Death Penalty Forum, passed along an email he received just days after the murders. “Your lucky your state has the death penalty,” it read (spelling and grammatical errors intact). “That SOB shooter needs to rot and preferably be lynched. There are horrific people out their…Those people need to die just like your shooter will, I hope they broadcast it on Youtube!”
Indeed, as the McVeigh example shows, support for the death penalty traditionally spikes after a monstrous crime. After Oklahoma City, states that had never before had a death penalty, like New York, established one. (It has since been repealed.) And in 1996, new federal laws enabled federal courts to hasten executions. In 1999, 98 death row inmates were executed, the highest number on record. The mid-1990s also saw the highest number of death sentences on record—more than 300 a year in 1994, 1995, and 1996, compared to about 112 last year.
Even murders less notorious than Oklahoma City produce a spike in death penalty support. In 2003, 77 percent of Virginians supported the death penalty, up from 68 percent in 2002, according to the Richmond Times-Dispatch. What changed? In October 2002, John Allen Muhammad went on a shooting rampage in Washington, D.C., and its suburbs, killing 10 people and injuring three. Muhummad was executed by lethal injection in November 2009.
To maintain their momentum, death penalty opponents hope to keep people focused on principle, and to assert again and again that inflamed passions make bad law. Revulsion at Loughner and his acts is understandable, said Dieter. “Everybody has a similar reaction,” he said. “It’s the same reaction you have when someone threatens you or a family member. It’s emotional. But at some sober moment, you decide that you don’t want to have that option. You don’t want to carry that assault rifle to shoot back.” The U.S. outlawed lynchings, Dieter pointed out, because they were impulsive acts of popular rage: “That’s why the state took over this whole idea of punishment. Mistakes are made. Let’s turn this over to cooler heads.”
Arguments of conscience have gained traction, too—especially among the growing numbers of Roman Catholic Latino voters, who tend to be socially conservative on gay marriage and abortion but who oppose the death penalty out of a commitment to the sanctity of human life and a concern about racial injustice in death sentences. “The death penalty humiliates justice,” said Mario Marazziti, a spokesman for the Community of Sant’Egidio, a Roman Catholic human rights group based in Rome. As in the abortion debate, activists are beginning to talk about “a middle way” and have found that while Americans overwhelmingly support the death penalty in the case of murder, they prefer life without parole if given the option. In 2005, Texas established the possibility of life without parole, and death sentences dropped to eight in 2010, down from 24 in 2004.
For death penalty opponents, progress in any case is a relative term. Loughner is their immediate obstacle, but they have a bigger one. The majority of Americans support the death penalty, as they almost always have. (The only time opponents outnumbered supporters was in 1967, in the midst of the civil rights movement.) In November, the United Nations passed a resolution calling for a universal moratorium on the death penalty. It passed, 107-38. The United States voted against—along with China, Sudan, Saudi Arabia, and Iran.
Lisa Miller is a writer at Newsweek and winner of many journalism prizes including the 2010 Wilbur Award for Outstanding Magazine Column. She is the author of "Heaven: Our Enduring Fascination of the Afterlife ," to be published in paperback this spring. Find Lisa Miller on Facebook.