Legislative Abolition of the Death Penalty: A Qualitative Analysis

• Date: 10 February 2012
• DOI: https://doi.org/10.1108/S1059-4337(2012)0000057005
• Published date: 10 February 2012
• Pages: 31-70
• Author: Kevin H. Wozniak

LEGISLATIVE ABOLITION OF THE

DEATH PENALTY: A QUALITATIVE

ANALYSIS

Kevin H. Wozniak

ABSTRACT

Legislative action was historically the means by which U.S. states

abolished capital punishment, but such action ceased for decades

following the Supreme Court’s 1976 Gregg decision that reaffirmed the

constitutionality of the death penalty. Despite the fact that several

legislatures have considered abolition bills in the modern era, only three

states successfully enacted such legislation. It is my purpose in this study

to analyze why states are currently struggling to pass abolition legislation

and to determine which factors contribute to success. I conduct a

comparative, qualitative case study of New Jersey, the first state to

legislatively abolish since 1976, and Maryland, a similar state whose

abolition effort recently failed. I analyze the content of legislators’

debates about the abolition bills in committee and on the legislature floor,

as well as news coverage of the abolition efforts in each state’s largest

newspapers. I reach two primary conclusions. First, an abolition bill is

more likely to be passed by Democrats than Republicans, but unified

Democratic control of the government is not a sufficient condition for

abolition. Second, arguments about the risk of wrongful executions and

the deleterious collateral consequences of the death penalty process on the

Studies in Law, Politics, and Society, Volume 57, 31–70

Copyright r2012 by Emerald Group Publishing Limited

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000057005

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family members of murder victims are powerful sources of political

support for abolition, especially where doubts about the deterrent effect of

the death penalty are widespread. This study reaffirms the central

importance of the innocence frame in the modern death penalty debate,

and it presents the first scholarly analysis of the collateral consequences

frame. These findings may help activists in the abolition movement more

effectively frame their arguments to appeal to legislators.

INTRODUCTION

The death penalty in the USA is a constant source of controversy. Efforts to

abolish capital punishment go back over 100 years and continue to the

present day (Davis, 1957;Galliher, Ray, & Cook, 1992;Haines, 1996;Sarat,

2002). Progress in the modern abolition movement seems to be coming full-

circle. Galliher, Koch, Keys, and Guess (2002) demonstrate that legislative

action was the most common means by which states eliminated capital

punishment from colonial times through the middle of the twentieth

century. However, the Supreme Court’s Furman and Gregg decisions in the

1970s disrupted the spread of abolition legislation throughout the states.

After the Court reaffirmed the constitutionality of capital punishment in

Gregg, most states crafted legislation to strengthen their death penalty

statutes, and abolition efforts shifted toward the courts.

At the turn of the twenty-first century, abolitionists appear to be fighting

their battles within the legislatures once again. Over the past 10 years,

abolition bills were introduced into the legislatures of 14 states (Death Penalty

Information Center, 2011).

1

As of December 2011, only New Jersey, New

Mexico, and Illinois successfully abolished, the first states to do so in the post-

Gregg era. The enactment of these three abolition bills into law, and the fact

that more and more states are debating abolition bills, suggest that the

abolition movement may be picking up where it left off prior to Furman –a

slow but steady progression of legislative abolition (Galliher et al., 2002).

Despite the history and recent surge of abolition legislation across the

states, scholars largely focus on more macrolevel influences on use of the

death penalty (e.g.,Baumgartner, De Boef, & Boydstun, 2008;Fisher& Pratt,

2006;Jacobs & Carmichael, 2004;Jacobs & Kent, 2007;Langbein, 1999;

Nice, 1992;Norrander, 2000;Ruddell & Urbina, 2004); few scholars study

legislative consideration of death penalty bills (Culver, 1999;Galliher &

Galliher, 1997;Galliher et al., 2002, 1992;Koch & Galliher, 1993;Sarat,

KEVIN H. WOZNIAK32

2002).

2

Though the legislature is a common battleground upon which the fate

of the death penalty is decided, we know little about the factors thatinfluence

successful passage or failure of abolition legislation, particularly in the

modern, post-Gregg era. In order to address this gap in our knowledge, I

conduct a qualitative case study of the New Jersey and Maryland legislatures

as they considered abolition legislation. The results from this study will

provide guidance for legislators and activists as legislatures across the USA

continue to debate whether to retain or abolish capital punishment.

THEORETICAL EXPECTATIONS

Party Politics vs. Personal Values

Political scientists debate whether legislative outcomes are driven primarily

by the influence of political parties or by the individual preferences of the

legislators themselves. The debate is centered around the spatial theory of

Krehbiel (1998) on the one hand and the conditional party government

theory of Aldrich and Rohde (1997, 2000) and the cartel theory of Cox and

McCubbins (2005) on the other (see Smith, 2007). Krehbiel argues that

most legislative outcomes can be explained without referring to political

parties; that is, if you know the policy preferences of the legislators, you can

predict the outcome of votes without knowing the legislators’ partisan

affiliations. In other words, Krehbiel implies that parties cannot lead

legislators to cast a vote that is contrary to their personal preferences,

which ultimately leaves parties as a secondary determinant of legislative

votes.

On the other hand, Aldrich and Rohde (1997, 2000) and Cox and

McCubbins (2005) argue that party members cede control over the

legislative agenda to their party leaders in order to ensure that the party’s

favored legislation passes. These theorists argue that party members are

more willing to cede power to their leaders when the preferences of the party

members are homogeneous, meaning that it is unlikely that party leaders

will support legislation that is distasteful to party members. However,

Sinclair (2007) finds evidence that party leaders do attempt to shape the

preferences of individual legislators through both enticement and coercion,

which means that Aldrich, Rohde, Cox, and McCubbins may underestimate

the power of parties to affect legislative outcomes above and beyond the

preferences of the legislators themselves.

Legislative Abolition of the Death Penalty: A Qualitative Analysis 33