by Patrick B. McGuigan
OKLAHOMA CITY – In the lead editorial for Sunday (October 30), Oklahoma’s largest newspaper has encouraged voters to say “no” to a controversial proposal to enshrine capital punishment within the state constitution.
Editorial writers for The Oklahoman asserted State Question 776 would “add provisions to the [state] constitution without any obvious benefit in response to no obvious problem.”
The editorial reasoned: “State Question 776 endorses the death penalty, and mandates that the Legislature has the power to authorize new methods of execution should current methods (lethal injection) be declared unconstitutional by federal courts.
“Yet the death penalty is already constitutional and the Legislature already determines execution methods. S.Q. 776 changes nothing, and its passage would have little bearing on federal court rulings.”
The latter two sentences of the above quote touch on an important point about the proposed constitutional amendment.
The measure’s advocates purport to advance it as a way to push back against federal interference in state prerogatives, among other things. But capital punishment provisions are inevitably, and appropriately, subject to judicial review, including in federal courts. Assertions to the contrary at the state level will not be taken seriously in federal courts.
Conservatives who want to protect state prerogatives should tread carefully in asserting state’s rights that are contrary to American history and to U.S. constitutional provisions. While there is room for debate about areas of federal overreach where prudent counter-action at the state level is merited, capital punishment is a poor choice to fight that cause.
The context in which The Oklahoman editorial arrives is important. It has been two years since the state executed any one, and the reasons for the time gap are all homegrown, not the imposition of rogue judges at the federal or state level.
Those who oppose capital punishment in all instances will find encouragement in the position taken on this important state question at the state’s largest newspaper, historically a conservative stalwart in a sea of liberal editorial pages across the land of the free.
Conservatives, even those who defend the constitutionality of the death penalty, should applaud the editorial writers for a straight-forward, timely and persuasive argument against both unnecessary state constitutional cluster and ill-advised invitations to new (and expensive) litigation.
The editorial writers no doubt have carefully studied the ongoing shift in public opinion on maintenance of the Ultimate Sanction in American law.
Many Oklahomans previously advocating the penalty have shifted to a critical view of its exercise. That is no surprise, for any prudent observer must regard with horror the possibility of even one wrongful execution. The near-execution of Richard Glossip just 13 months ago would be exhibit A in that category. No wonder so many Oklahomans have shifted from support or ambivalence about executions toward a more nuanced stance, backing alternative sanctions for the guilty – life without possibility of parole.
Not to overstate the editorial’s significance, the newspaper’s lead paragraph made a pragmatic argument against S.Q. 776: “Oklahoma’s state constitution is among the nation’s longest, largely because it is packed with provisions that should have been handled in statute. If anything the Oklahoma Constitution should be reduced in size, not expanded.”
In the end, these short and well-reasoned comments on this significant decision could – and this writer hope will – bear abundant fruit, in popular rejection of State Question 776.