Tuesday, May 6, 2014

Obama Orders Policy Review After Botched Execution

President Barack Obama declared this week’s botched execution in Oklahoma “deeply disturbing” and directed the attorney general Friday to review how the death penalty is applied in the United States at a time when it has become increasingly debated.

Weighing in on a polarizing issue that he rarely discusses, Obama said the Oklahoma episode, in which a prisoner remained groaning in pain after sedatives were apparently not fully delivered, underscored concerns with capital punishment as it is carried out in America today. While reiterating his support for the death penalty in certain cases, Obama said Americans should “ask ourselves some difficult and profound question” about its use.

Within hours, the Justice Department outlined a relatively narrow review focused on how executions are carried out rather assessing the entire system.
But given Obama’s broader comments, supporters and opponents wondered whether he might be foreshadowing an eventual shift in position by the time he leaves office, much as he dropped his opposition to same-sex marriage in 2012.

“In the application of the death penalty in this country, we have seen significant problems – racial bias, uneven application of the death penalty, you know, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence,” Obama told reporters. “And all these, I think, do raise significant questions about how the death penalty is being applied.”

Whether Obama’s concerns lead to policy proposals remained far from certain, but the administration review comes at a time when the use of the death penalty has begun to recede in the United States. The number of executions has fallen by half since its modern peak in 2000, while a half-dozen states have abolished capital punishment over the past seven years and others have imposed moratoriums or are exploring legislation to repeal it.

The federal government has effectively imposed its own moratorium on carrying out executions since 2010 while trying to figure out issues surrounding the drug cocktail commonly used for lethal injection. The Justice Department said Friday that it would build on that assessment.

“At the president’s direction, the department will expand this review to include a survey of state-level protocols and related policy issues,” the department said in a statement.

For Democrats, opposition to the death penalty has been considered politically untenable at the national level ever since Michael Dukakis cost himself support with a clinical answer during a 1988 presidential debate about whether he would support it if his wife were raped and killed.

But critics argue that the times have changed with reports of racial disparity and DNA evidence exonerating some on death row. Sixty per cent of the American public still backs the death penalty for those convicted of murder, but support has fallen to the lowest level in more than 40 years, according to Gallup.

For his part, Obama has been more willing to address issues like racial disparity and other problems in the criminal justice system since his re-election. He is currently planning to use his clemency powers to release hundreds and perhaps even thousands of drug convicts serving long sentences for less serious infractions.

“I suspect this being his last term, there could be ulterior motives to weaken the death penalty system,” said David B. Muhlhausen, a criminal justice researcher at the conservative Heritage Foundation. “People who believe in the death penalty should be very concerned about this.”
For now, Obama said his position had not changed.

“The individual who was subject to the death penalty had committed heinous crimes, terrible crimes,” he said of the Oklahoma inmate. “And I’ve said in the past that there are certain circumstances in which a crime is so terrible that the application of the death penalty may be appropriate – mass killings, the killings of children.”

Oklahoma authorities were trying to carry out two executions Tuesday night when the first one went awry. Clayton Lockett, convicted of the murder of a 19-year-old woman whom he shot and buried alive, remained alive after the dose of sedatives and later died of a heart attack. The second execution was called off.

Lockett’s ordeal prompted a lawyer for a Missouri death row inmate to ask state corrections officials to videotape her client’s execution scheduled for later this month to record any suffering.

Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, applauded Obama’s resolve to investigate concerns about Oklahoma and the use of capital punishment more generally.

“The significant thing is the president as a person who supports the death penalty is expressing these concerns,” she said. “The president is not alone among those who support the death penalty who say this execution crossed the line and has other concerns.”

Obama has long said he supports capital punishment for the most shocking crimes, but he has also questioned its effectiveness. In his book “The Audacity of Hope,” he wrote that “the evidence tells me that the death penalty does little to deter crime.” After student and professional journalists in his home state of Illinois came up with evidence of an innocent man on death row and other problems with the system, Obama, as a state senator, decided to take on the issue.

He worked closely with disparate sides in the long-running debate, including prosecutors, the police and the American Civil Liberties Union, to push through legislation requiring that interrogations in homicide cases be electronically taped to cut down on false confessions. He also opposed adding more crimes to the list of those eligible for death sentences.

But Obama has not sought more expansive restrictions at either the state or federal level. During his 2008 campaign for president, he disagreed with a Supreme Court decision that found the death penalty unconstitutional in the case of a child who was raped but not murdered.

The attorney general he has now tasked to review the matter, though, has been an open opponent of capital punishment. During his confirmation hearings, Holder said he disagreed with the death penalty personally but would enforce the law. He has approved seeking it in fewer than 5 per cent of cases where it was eligible, according to the Justice Department, but did sign off on pursuing death sentences in cases such as that of Dzhokhar Tsarnaev, accused in the Boston Marathon bombings.

Holder has expressed concern about the disparity of those sitting on death row, and those who know him said he would be eager to have a chance to conduct a broader review of the penalty.

What actions the federal government could take on capital punishment is up for debate since most death sentences are applied at the state level. But many state corrections officials follow federal protocols for executions, and some advocates on both sides said Washington could set a tone for the rest of the nation.

In recent years, New York, New Jersey, New Mexico, Illinois, Connecticut and Maryland have abolished the death penalty. The governor of Washington state declared in February that no executions would take place while he remained in office, following a similar move by the governor of Oregon in 2011. Last year, Colorado’s governor issued an indefinite reprieve in the only case on his watch.

Peter Baker | NYTimes

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