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Tim Kaine and Virginia's Third Rail

Gov. Tim Kaine made it plain in his campaign TV ads: Yes, he's morally opposed to capital punishment, but he did not intend to impose his personal views on Virginia. "I'll enforce the death penalty," he said in his TV spots. "As governor, I'll carry out death sentences handed down by Virginia juries because that's the law."

True to his word, Kaine has allowed four executions to go forward already in his short time in office. And true to his core beliefs, Kaine this week vetoed bills that would have expanded the use of the death penalty in Virginia.

What's remarkable here is not that Kaine is doing what he promised he would do--during the campaign, Kaine told me in an interview that he had no doubts about his ability to carry out the death penalty, but he also said that he had no intention of expanding the death penalty. No, what's quite amazing is that despite all the stereotypes that political consultants cling to about Virginia, this is a governor who was arguably elected because of his opposition to capital punishment--well, not quite because of his position, but more precisely, because of his willingness to be forthright about his position, even in the face of a scurrilous and low set of campaign ads launched by his opponent, Republican Jerry Kilgore, who famously smeared Kaine as something of a Nazi for saying that even Adolf Hitler wouldn't have qualified for the death penalty.

(Actually, that's not what Kaine said. What he actually said in response to a question about whether Hitler, Idi Amin and other evil characters should have been executed was this:

[T]hey may deserve, you, they may deserve it, of course they may for doing something heinous, they don't deserve to live in civilized society, they may deserve the death penalty. You know, I look at the world, most nations have decided not to have a death penalty, and, and many are very safe, I don't think, I don't think it's needed to be safe.)

Anyway, the point is that Kaine may have won election in good part because Kilgore went way too far on that Hitler ad, and Kaine refused to crawl into the gutter with his opponent, trusting that Virginians would accept him as a man of his word--he opposes the death penalty, but would enforce the state's law. And obviously, a man with such a position could not reasonably be expected to sign bills that would expand the death penalty.

And that's the other amazing bit in this series of vetoes that Kaine announced this week: He did so with little expectation that standing up against the death penalty would cause him any political harm. In fact, the reaction across the state has been mild bordering on ho-hum. Once again, the people are well ahead of the politicians on this issue. As in Maryland, where legislators this session failed to accept Gov. Martin O'Malley's invitation to put a halt to the state's executions, Virginia pols don't see that popular support for capital punishment is in freefall. Sure, most people still philosophically support the death penalty, but given the cavalcade of bad news about botched executions, doctors who won't sanction the use of lethal injections, misidentified killers and DNA exonerations, it's become clear that the death penalty process is fatally flawed, and many Americans no longer want the blood of a tainted process on their hands.

Should Kaine have gone all the way and said that he would not enforce Virginia's law? During the campaign, I pressed him on this point: If you're really philosophically opposed to the practice, how can you sign a death warrant? He split some hairs and stood by his lawyerly allegiance to the statutes. Well, ok, but doesn't he at least have an obligation to do as O'Malley has and stand up for a moratorium or other effort to halt Virginia's executions?
That's the next step--it's probably a political bridge too far for a Democrat in Virginia right now, but it would be the right thing for Kaine to do.

By Marc Fisher |  March 29, 2007; 8:15 AM ET
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Marc, I think what you're getting at is the difference between political discourse and normal discourse. In a rational setting, you can say that while there are some crimes for which no punishment is severe enough, it is not a civilized government's place to kill people. But on the campaign trail, it turns into a competition to see who's tougher, who can protect us from all the bad people (at home and abroad).

Posted by: Arlington, VA | March 29, 2007 9:55 AM

Kaine gets a pass from the people because when he says he has deeply held religious, sorry, Christian beliefs on the subject, there are a lot of conservative voters in Virginia who say "hey, you've got to respect deeply held Christian beliefs." He's not purely pro-killer like a lot of death penalty opponents.

Posted by: athea | March 29, 2007 10:32 AM

I swear Mark, you do these posts just to rile up the 'If you don't like America you can git out!' crowds. :-)

5 bucks says by post 30 this has devolved into a 'what does the second amendment really mean' comment thread.

Posted by: DCAustinite | March 29, 2007 10:58 AM

"Well, ok, but doesn't he at least have an obligation to do as O'Malley has and stand up for a moratorium or other effort to halt Virginia's executions?"

I think Kaine and O'Malley have two entirely set of circumstances, here. Based on what I've seen/read, the popular support (read: voter) for capital punishment is less in Maryland than in Virginia (maybe much less). O'Malley doesn't have much to lose in his stance, whereas Kaine, in fact, may have a lot to lose if he were to take a similar stance.

Posted by: cb | March 29, 2007 11:31 AM

Wait a minute--first, you're (sort of) giving Kaine some props for standing by his campaign pledge to enforce the capital punishment statutes already on the books, but not to expand them.

Then, you fault him for not proposing a moratorium on capital punishment--i.e., you fault him for not going back on his campaign pledge to enforce the capital punishment statutes already on the books.

You say that by not going the O'Malley route, Kaine is being a hypocrite with regards to his beliefs, and that he's not keeping up with the voters' feelings on the death penalty.

I don't about Maryland (did it occur to you that the O'Malley proposal didn't pass because it was O'Malley--not the legislature--who was out of sync with the voters), but in Virginia I think Kaine's got it about right: most folks are conflicted about the death penalty. They no longer think it's a deterrant, and that it's too widely applied, but they want to keep it as an option for truly heinous crimes.

Posted by: Claudius | March 29, 2007 11:35 AM

Contrary to the article, it is VERY unusual for a Democrat to keep his campaign promises. [Especially about taxes, which Kaine and the Democrats in the legislature were NOT forthright about in their campaigns.]

Posted by: gitarre | March 29, 2007 12:59 PM

Pro-killer, athea? Good grief. Do you really believe that anyone is in favor of murder?

Posted by: THS | March 29, 2007 12:59 PM

Given that we accept the fact that governments have the sanction to prosecute war, and thus deal death to others, it is not valid to say that governments shouldn't be allowed to take human life. It is not unreasonable to expect the government to take the lives of people who are actually guilty and for citizens to feel some certainty that the correct people are being punished. Until there is that certainty a moratorium should be enforced.

Posted by: Chris | March 29, 2007 1:04 PM

Can we start talking about the real meaning of the second amendment, please?

Posted by: Greg | March 29, 2007 2:42 PM

From Wikipedia:


"The Embarrassing Second Amendment" by Sanford Levinson[33] indicates the six approaches to constitutional analysis outlined in Constitutional Fate by Philip Bobbitt:

textual argument -- the unadorned language of the text

historical argument -- the historical background of the vision being considered, whether the general history (such as the American Revolution) or specific appeals to the so-called intentions of Founding Fathers of the United States

structural argument -- inferences from the particular structures established by the Constitution, including the tripartite division of the US federal government; the separate existence of both state and nation as political entities; and the structured role of citizens within the political order

doctrinal argument -- prior cases decided by the Supreme Court

prudential argument -- consequences of adopting a proferred decision in any given case

ethical argument -- reliance on the overall ethos of limited government as centrally constituting American political culture

The legal grammar of constitutional argument comprise these six approaches -- or "modalities", as Bobbitt terms them. These approaches are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on in analysis of United States constitutional law:

Posted by: Chris | March 29, 2007 4:09 PM

How about the execution that Kaine didn't let go forward? Where he could find an iota of weasel room so he could ignore juries and the law on that one. He's like any politician; if there's no way out he'll call it his campaign promise, if he can weasel out of it he"ll show his true colors.

Posted by: Stick | March 30, 2007 9:10 AM

Chris -- Brilliant. :-)

Posted by: DCAustinite | March 30, 2007 10:59 AM

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