IF THERE WAS anything surprising about Hillary Clinton’s defense of capital punishment when questioned by an Ohio death row exoneree Sunday night, it was only that she was not better prepared to deliver it. This was no gotcha question, no unscripted ambush like the one carried out last month by Black Lives Matter protesters who confronted Clinton at a fundraiser with her ’90s-era rhetoric about “superpredators.” Although the CNN-sponsored Democratic town hall dictated that candidates do not receive questions in advance, the Clinton campaign almost certainly knew that Ricky Jackson, who spent an incomprehensible 39 years in prison as an innocent man, would be in the audience — and that if called upon, he would probably ask Clinton to justify her support for a policy that sent him to die for a crime he did not commit.
Yet, face to face with an emotional Jackson, who had to pause to regain his composure as he described how he came “perilously close” to execution, Clinton could only repeat a line that Jackson himself later described as “canned.”
“You know, this is such a profoundly difficult question,” she began. “And what I have said — and what I continue to believe — is that the states have proven themselves incapable of carrying out fair trials that give any defendant all of the rights a defendant should have, all of the support that the defendant’s lawyer should have. And I have said I would breathe a sigh of relief if either the Supreme Court or the states, themselves, began to eliminate the death penalty.”
But then she pivoted. “Where I end up is this — and maybe it’s a distinction that is hard to support — but at this point, given the challenges we face from terrorist activities, primarily in our country, that end up under federal jurisdiction, for very limited purposes I think that it can still be held in reserve for those.” Invoking the Oklahoma City bombing and 9/11, Clinton said, “That is really the exception that I still am struggling with.”
Clinton has been honing this response since at least November, when she tempered her long-held support for the death penalty at a Democratic forum by saying it should be reserved for “really heinous crimes,” mostly at the federal level. There, too, she criticized the states — “predominantly but not exclusively in the South” — for hastily seeking death sentences. And there, too, she said she would “breathe a sigh of relief” if the death penalty was abolished — in this case, by the Supreme Court, on the grounds that it is “cruel and unusual punishment.” Clinton struck the same note at a Democratic debate last month, telling MSNBC’s Rachel Maddow, “I deeply disagree with the way that too many states are still implementing” the death penalty. “I have much more confidence in the federal system,” she said.
“If it were possible to separate the federal from the state system by the Supreme Court,” Clinton added, confusingly, “that would, I think, be an appropriate outcome.”
If it’s hard to imagine how the Court might strike down the death penalty for states but not the federal government, this is just one problem with Clinton’s hedging on capital punishment. It is emblematic of Clinton as a politician that she has managed to stake out a position that lets her have it both ways while costing her absolutely nothing: vague semi-opposition to the death penalty at the state level (for which she would bear no direct responsibility as president), paired with confident support for executions at the federal level — the only realm in which opposing the death penalty could have any practical impact.
Apart from being slippery and convoluted, Clinton’s stance also happens to rest on a view of the death penalty that is both outdated and misleading. Worse, she has decided to perpetuate the insidious notion that the death penalty can be reserved for the “worst of the worst” — a myth that has been debunked again and again.
THE REALITY, as Clinton is no doubt aware, is that at the state level, capital punishment is already on its way out. Seven states have ended the death penalty in the past 10 years, including her own adopted state, New York. Executions have dropped precipitously — and additional repeal efforts are underway across the country, from Delaware to Utah, both of which tried and failed to pass abolition legislation this year. Public support for the death penalty remains, but has reached historic lows in recent years — not an unlikely explanation for Clinton’s move to distance herself from it now. (A 2015 Quinnipiac Poll found declining national support for the death penalty — except for terrorists.)
Clinton’s critique of the death penalty at the state level might make more sense if it were 1992.
Clinton’s critique of the death penalty at the state level might make more sense if it were, say, 1992 — the year her husband made a special trip home from the campaign trail for the execution of the brain-damaged Ricky Ray Rector in Arkansas. In those years, states were sending people to death row at a rapid pace — data available at the Death Penalty Information Center shows how death sentences “peaked in the mid-1990s and have declined significantly since that time.”
Today, for all the problems plaguing the death penalty across the country, a rash of new death sentences is not at the top. Jurors are increasingly rejecting the gurney in favor of life without parole and many prosecutors are less willing to seek death to begin with. Clinton’s portrayal of states as still moving “much too quickly to try people for capital offenses” ignores that even in those that continue to kill prisoners on a regular basis, new death sentences have grown increasingly rare. In Georgia, for example, which executed five people last year, there was not a single new death sentence in 2015. The same trend can be seen across the South.
A major contributing factor to the drop in death sentences is an improvement in capital defense — another place where Clinton’s critique feels weirdly dated and ill-informed. While, unquestionably, bad lawyering and lack of resources have unfairly sent defendants to die for decades, this is far less true today. Recent studies have shown that in states like Virginia, which opened four regional capital defender offices in 2004, better representation has led to fewer and fewer death sentences. In Texas, too, new capital defender offices have contributed to a notable drop in new death sentences.
Of course, serious problems endure — and there are certainly myriad other reasons to condemn the death penalty as currently carried out by the states, from persistent racial bias to the decades prisoners languish on death row to grotesque execution experiments amid shortages of lethal injection drugs. But Clinton has made no mention of these — perhaps because the very same issues apply to the federal system that she holds in such high esteem.
IT WOULD NOT be cynical to suggest that Clinton’s embrace of the federal death penalty is related to her husband’s instrumental role in shaping it. Even if she wanted to, it would be impossible to separate federal death row from the Clinton name. Although there has been much recent debate about how much to blame the 1994 crime bill for mass incarceration, its impact on this front is clear.
The law contained the 1994 Federal Death Penalty Act, which vastly expanded the offenses for which federal defendants could face execution. After Congress revived the federal death penalty in 1988, authorizing executions for “drug kingpins,” the ’94 law introduced dozens of new death-eligible crimes. The immediate spike in death-eligible federal capital defendants was tracked by the Federal Death Penalty Resource Counsel Project, which counted “26 death-eligible defendants in 1993, 63 in 1994, and then upwards of 150 in almost every subsequent year,” according to a 2010 report by a committee of the Judicial Conference of the United States. (After the Oklahoma City bombing, the 1996 Antiterrorism and Effective Death Penalty Act sharply curtailed the review process for prisoners on death row across the country.)
Although federal death row prisoners still represent a small fraction of the total number of people facing execution in the United States — 61 versus nearly 3,000 at the state level — today the vast majority of those condemned to die by the federal government were sentenced under the 1994 law.
The crimes that now carry the death penalty include murder for hire, fatal drive-by shootings, kidnapping resulting in death, and other crimes that, though violent, hardly qualify as terrorism or mass murder.
The crimes that now carry the death penalty include various types of murder for hire, fatal drive-by shootings, kidnapping resulting in death, and other crimes that, though violent, hardly qualify as terrorism or mass murder. Indeed, apart from Dzhokhar Tsarnaev, who was sentenced to die last year for the Boston Marathon bombing, there is not a single other convicted terrorist on federal death row. (Oklahoma City bomber Timothy McVeigh was executed in 2001.)
Instead, it is an assortment of gang members, drug dealers, rapists, and thieves, with varying degrees of blood on their hands. Like at the state level, some of them participated in but did not carry out the killings for which they were sent to die. Arboleda Ortiz, a Colombian national, played a partial role in the killing of a drug dealer (his co-defendant, the triggerman, died awaiting execution); Brandon Bernard, then 18, lit a car on fire after his 19-year-old accomplice shot a pair of youth ministers and put their bodies in the trunk; Dustin John Higgs ordered another man to kill three women — the triggerman was given a life sentence.
Like more than 40 percent of the prisoners on federal death row, Bernard and Higgs are both black — a reflection of the stark racial disparities within the federal death penalty system. Of the 62 people on federal death row as of last March, according to the DPIC, 27 were black, eight were Latino, one was Native American, and one was Asian.
It is hard to imagine that Clinton is unaware of the biases in this system she defends; a statistical study ordered by her husband “revealed that 80 percent of the cases submitted by federal prosecutors for death penalty review” between 1995 and 2000 “involved racial minorities as defendants.” Of the revelations in the report, then-Deputy Attorney General Eric Holder said, “I can’t help but be both personally and professionally disturbed by the numbers that we discuss today.”
In many ways, the federal system is a microcosm of the very same pitfalls that have come to define the death penalty as a whole. State death penalty trials are notoriously costly — at the federal level, they cost an average of eight times as much as non-capital trials. While no one has been exonerated from federal death row, some cases have raised serious questions about innocence. In 2001, Bill Clinton commuted the death sentence of an Alabama pot grower named David Ronald Chandler, convicted in a murder for hire, amid grave questions about his guilt — raised in part by the recanted testimony of the triggerman himself. Chandler is now serving a life sentence.
Other familiar problems include mental illness, ineffective assistance of counsel, defendants who have insisted on representing themselves, and a lack of consideration for the trauma and abuse predating their crimes. Among the few people ever executed at the federal level since 1988 was Louis Jones, a black Gulf War veteran convicted for a rape and murder on a military base; Jones had no criminal history and had been diagnosed with PTSD. He died by lethal injection in 2003.
CLINTON’S AWKWARD DEFENSE of the death penalty in Ohio was particularly odd given some of the positive things she could have highlighted about her own record. She might have told Jackson that as a senator, she co-sponsored the Innocence Protection Act, to give states resources to address wrongful convictions. Going back farther to her days practicing law in the ’70s, she helped save the life of an intellectually disabled black man named Henry Giles, who had been sentenced to die by an all-white jury.
These are not accidental omissions. With the general election in view, Clinton is not likely to emphasize any aspects of her record that might be perceived as “soft on crime” (however bankrupt that standard has proven to be).
One need only look to the 2008 presidential contest for an example of how far Democrats will lurch to the right to avoid such a label; as the race went into general election mode, then-candidate Barack Obama suddenly embraced an extreme pro-death penalty stance, slamming the U.S. Supreme Court ruling in Kennedy v. Louisiana, which invalidated death sentences for child rapists in non-murder cases. The move was especially shameless given Obama’s stature as a constitutional scholar — who knew full well that supporting executions for non-homicide crimes was a fairly radical position. (It was also pernicious for a former community organizer on Chicago’s South Side, who was not at all ignorant of the way the systemic police torture of black suspects sent innocent men to Illinois’s death row.)
The past eight years have ushered in a wave of botched executions, the alarming rise of secrecy laws, and a condemned population that is increasingly old, infirm, and dying on death row.
Still, there is something particularly galling about defending the death penalty in 2016 versus even 2008. In 2009 alone, nine people were exonerated from death row. The number of official death row exonerations now stands at 156. The past eight years have ushered in a wave of botched executions, the alarming rise of secrecy laws, and a condemned population that is increasingly old, infirm, and dying on death row. Prosecutorial misconduct and flawed forensic methods have been exposed as never before, including at the federal level. Last year, the FBI finally admitted to a catastrophic mishandling of hair fiber evidence in criminal trials spanning 20 years — including in 32 death penalty cases. (In 14 of those, the defendants have since died or been put to death.)
As a trained defense attorney who once represented clients for violent crimes, Clinton has been long aware of how the criminal justice system works in theory versus reality. That she continues to defend the death penalty given everything we know about it now does not so much betray ignorance as indifference — or else just plain unwillingness to expend political capital on this issue, at least until the moment is right.
This, of course, is at odds with her grand promise to end the era of mass incarceration. In a CNN op-ed the day after he stood to ask his question in Columbus, Ricky Jackson pointed out this contradiction. “The fact that Clinton continues to hang on to this antiquated relic confuses me,” he wrote. “She touts ‘criminal justice reform’ — and much reform is needed — but she misses one of the lowest hanging pieces of fruit.”
Perhaps it is true that Clinton will “breathe a sigh of relief” if and when the death penalty finally ends. But that statement alone speaks volumes about her leadership — and the kinds of reforms she will be willing to deliver in the end. A vow to feel relieved when others finally win the fight against capital punishment is not exactly a profile in courage. Clinton knows full well that the death penalty — as it actually exists — is wrong. She’s just not going to waste any power doing anything about it.