"I don't know exactly what the timing is, but over the longer arc of history I think you'll see more and more states repeal the death penalty," O'Malley told reporters after signing the Maryland repeal. Law professor Jamin Raskin, a Maryland state senator, echoed that sentiment. "The trend lines are clear," he said. "There's nobody who's adding the death penalty to their state laws. Everybody is taking it away."
Everybody? It would be more accurate to say that some willful politicians have taken it away by flouting voters' wishes. The Washington Post reported in February that on this issue, a majority of Marylanders opposed O'Malley; 60 percent wanted the state to retain the death penalty as an option for especially heinous killings, while only 36 percent believed life without parole should be Maryland's harshest penalty.
In Connecticut, too, ending capital punishment meant riding roughshod over public opinion. A Quinnipiac University poll conducted as Connecticut's abolition bill awaited Malloy's signature found that 62 percent of the state's voters supported the death penalty, and that six out of 10 said the legislature's abolition decision was a "bad idea."
Elected lawmakers disregarding their constituents? Shocking, I know. Yet the death penalty for murder has commanded majority support for decades, rising to a record high of 80 percent in the 1990s. In no state, not even the bluest, has the death penalty been successfully repealed by referendum. Last November, as Californians were voting to re-elect President Obama, they were simultaneously defeating a ballot measure that would have abolished execution as the ultimate penalty for murder. Opposition to capital punishment enjoys plenty of support among media and political elites, and Americans are routinely reminded that most modern democracies have outlawed it. Yet whenever the question is put to voters directly – repeal or retain? -- they choose to retain it.
Of course no reasonable person suggests that every homicide should get the death penalty. What the great majority of Americans do believe is that for the most egregious or cold-blooded killers, execution should be a possibility. Most opinion surveys merely ask some version of the question Gallup routinely poses: "Are you in favor of the death penalty for a person convicted of murder?" But that understates the true level of support. Yes, there is an influential minority of Americans that opposes capital punishment, period. But the overwhelming majority of us believe that it should be available in at least some cases – the "worst of the worst."
Just where that line should be drawn – which aggravating factors should be required to make a crime death-eligible – is a legitimate subject for debate. But sometimes debate is superfluous.
The horror Tsarnaev is accused of is practically a textbook example of aggravating factors: Multiple murder, murder of a child, murder of a police officer, bombing in a public place, wanton cruelty, substantial premeditation, intention to terrorize. In such a case, should the judge and jury have the option of imposing the death penalty if they decide that's what justice requires? Seven out of 10 Americans say yes. Which is another way of saying that 7 out of 10 Americans are pro-capital punishment.
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