Crime is a hot issue, but even Republicans don't talk about the death penalty: That's good news

It's an important milestone: Even with GOP pushing "law and order," candidates don't vow to put people to death

Published November 8, 2022 12:00PM (EST)

Police officers gather to remove activists during an anti-death penalty protest in front of the US Supreme Court January 17, 2017 in Washington, DC. (BRENDAN SMIALOWSKI/AFP via Getty Images)
Police officers gather to remove activists during an anti-death penalty protest in front of the US Supreme Court January 17, 2017 in Washington, DC. (BRENDAN SMIALOWSKI/AFP via Getty Images)

Democracy is on the ballot. Abortion is on the ballot. Border security is on the ballot. Americans across the country have heard about these issues repeatedly in the run-up to Tuesday's midterm elections.

But on the subject of the death penalty, Americans are hearing strangely little. If anything, the 2022 campaign has featured a deafening silence about the formerly hot issue of capital punishment.  

That silence marks an important milestone in the struggle to end the death penalty in the United States and an important tactical victory for abolitionists. It suggests that, at least for the moment, the death penalty has been effectively neutralized as a weapon in the arsenal of conservative culture warriors.

The silence about capital punishment during this campaign season has been found in states like Oklahoma, which have the death penalty and continue to carry out executions, as well as in states like New York that have abolished capital punishment, and states like Pennsylvania that retain it as an authorized punishment but do not use it.

The silence about the death penalty is all the more remarkable, given heightened concerns about crime and public safety among voters in this election. 

On Oct. 31, the Pew Research Center reported that "Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year's congressional elections. … Roughly three-quarters of Republican and GOP-leaning registered voters (73%) say violent crime is very important to their vote, compared with around half of Democratic or Democratic-leaning registered voters (49%)."

Pew notes that crime is a more important issue among older voters and among Black voters, a factor that may be particularly damaging for Democrats. As the New York Times noted on Nov. 4, "politicians around the country have promised in the closing days of the midterm election to crack down on crime. Would be governors will crack down on crime. Senators will crack down on crime. Members of Congress will do it, too. Obviously, their opponents won't."

But there's a noteworthy difference. In the past, politicians at every level responded to public concerns about crime with law-and-order campaigns in which promises to bring back or enforce the death penalty featured prominently. 

As law professor Jonathan Simon found in his study of the crime politics of the 1960s, 1970s and 1980s, capital punishment became a highly salient issue "in federal elections and directly in presidential elections" during that period, even though presidents and members of Congress have almost no authority over law enforcement and punishment, which are primarily the responsibility of state and local officials.

In the 1988 campaign for president, Republican George H.W. Bush famously succeeded in painting his Democratic opponent, Massachusetts Gov. Michael Dukakis, as soft on crime because of Dukakis' unwavering opposition to the death penalty.

My own research has revealed the electoral power of the death penalty issue whenever voters are asked to express their views on it directly. Since 1968, voters have been asked to determine the fate of capital punishment in their states 18 times — and the pro-death penalty side has won every single time.

Throughout the late 20th and early 21st centuries, death-penalty ballot measures have been used as tools of partisan and political advantage, largely to increase turnout among a targeted portion of the electorate in order to benefit "law and order" candidates.

But not this year. 

Only in Alabama will voters be asked to decide on a death-penalty ballot measure. It would "require the governor to provide notice to the attorney general and make reasonable efforts to notify a designated family member of a victim before granting a commutation (a reduced sentence such as life imprisonment) or reprieve (temporary stay of execution) of a death sentence." 

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But in campaigns up and down the ballot, even as conservative candidates have accused their opponents of being soft on crime and promised robust anti-crime measures, Republican gubernatorial candidates in Arizona, Georgia, New York and Oklahoma have said little or nothing about the death penalty.

Let's consider a few examples.

For more than 50 years, the death penalty has been a powerful political tool for "law and order" Republicans. But not this year: The national temperature has changed.

Kari Lake, Arizona's Republican candidate for governor, is a staunch supporter of Donald Trump and his Big Lie about the 2020 election, and has campaigned on a pro-police, "Back the Blue" agenda. "I won't give an inch to people who want to tear down law enforcement for their own benefit," she has said. "We need great cops, and we need them to have all the tools and training they need to perform their jobs safely and compassionately. Instead of defunding police, I will fully fund police." 

Notably, Lake has not promised to push for more death sentences or executions as part of her agenda. 

Kevin Stitt, the Republican governor in Oklahoma, where the crime issue has grabbed headlines in this year's campaign, is a longtime death penalty supporter, but anyone reading his website would never know it.  

Pennsylvania's Republican gubernatorial candidate, Doug Mastriano — a Trump supporter and avowed Christian nationalist — says that "Government's top job is to provide for the safety of its citizens." As governor, he promises to "hold elected officials accountable for enforcing the law and prosecuting crime. If they won't do their jobs," he says, he "will remove them." 

Mastriano says he intends to "keep violent criminals behind bars where they belong and [to] strengthen penalties for repeat offenders and those convicted of violent crime." He says he will also "support funding for additional prosecutors in high-crime areas." There is no doubt that, if elected, Mastriano would end Pennsylvania's moratorium on executions, but he has not made doing so a prominent part of his campaign.

New York's Republican gubernatorial candidate, Lee Zeldin, has made the state's crime problem central to his longshot campaign against Democratic incumbent Kathy Hochul. In 2019, Zeldin stated, "I strongly support the death penalty," and in May he called for reinstating New York's death penalty in the wake of the mass shooting at a supermarket in Buffalo. But he has said little about the death penalty this fall. 

Surprisingly, Oregon, one of America's most reliably Democratic states, is where the death penalty has been most prominent in the 2022 campaign. Like Pennsylvania, it currently has a moratorium on executions. 

Lee Zeldin, New York's Republican gubernatorial candidate, called for reinstating the death penalty after the mass shooting in Buffalo — but has barely mentioned it during the fall campaign.

Former Oregon House minority leader Christine Drazan, the Republican candidate for governor, has indicated she would lift the moratorium. Even so, she has gone out of her way not to turn the death penalty into a wedge issue. In fact, she has said she personally opposes capital punishment but will consider death-penalty cases "on a case-by-case basis," rather than setting aside the existing law approved by voters.

More predictably, Florida Gov. Ron DeSantis sought political advantage after last month's sentencing in the Parkland school shooting case when the jury could not achieve the unanimous decision necessary for a death sentence. DeSantis reacted by saying: "I'm sorry, when you murder 17 people in cold blood, the only appropriate punishment is capital punishment."

But the issue was defused, at least in political terms, when his Democratic opponent, Charlie Crist, agreed that the convicted Parkland shooter should have been sentenced to death.

Whatever the verdict delivered by voters this week may be, the relative invisibility of the death penalty in this year's political campaigns is a clear sign of the progress abolitionists have made in changing the national temperature on that issue. 

They have done so by highlighting the death penalty's extraordinarily high monetary costs, its discriminatory application and the very real risk of executing innocent people. As the political scientist Frank Baumgartner suggests, politicians have come to realize that the public has "soured on capital punishment."

As this year's campaigns show, it is no longer as easy to demonize death penalty opponents as it was for George H.W. Bush against Dukakis more than three decades ago. 

But despite this striking progress in the electoral arena, the battle to end capital punishment in this country is far from over. Republicans who have said little about it so far this year will, if they win elections in death-penalty states, surely do whatever they can to keep putting people to death. 

This is just one more reason why the 2022 election is so consequential for America's future.

By Austin Sarat

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His most recent book is "Lethal Injection and the False Promise of Humane Execution." His opinion articles have appeared in USA Today, Slate, the Guardian, the Washington Post and elsewhere.

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Analysis Capital Punishment Crime Criminal Justice Death Penalty Elections Republicans