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November 12, 2007

Has President Bush been soft on capital murderers?

As showcased here, the Dallas Morning News is in the midst of a five-part series debunking the myth that Texas justice is always harsh for murderers.  In the same spirit, this comment by federalist led me to think a bit about George Bush's record on capital punishment as President.  Specifically, I was thinking about the distinct records of Bill Clinton and Bush on the practical operation of the death penalty.  Consider this comparison:

Of course, the U.S. President usually will have only a very modest impact on the administration of the death penalty throughout the United States.  (Though, notably, the Bush Admininstration has agreed to stay numerous federal execution dates for no clear reason, and in the Medellin case it is supporting the murderer's claims against the state of Texas.)  Still, if research suggests that a certain number of innocent lives are  saved for each execution (perhaps as many as 74 lives), we all should have felt a lot safer under President Clinton than we do under President Bush.

November 12, 2007 at 05:44 PM | Permalink


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Dude, Bush mocked Carla Faye Tucker's pleas for clemency when he was governor of Texas. He's since learned only to keep his mocking of those who receive the death penalty outside the range of reporters.

As for a president's effect on total executions, I don't see how he has any effect on what the states do. Federal executions, sure. But to say a increase or decrease in the number of executions by the states is somehow correlated to a given president requires more than temporal coincidence. Unless a president gets up before the nation and uses the bully pulpit of the POTUS to give a rousing speech imploring the entire country to end the death penalty (which no elected president has nor ever will do), a president simply cannot have any effect on state executions.

Posted by: bruce | Nov 12, 2007 6:43:07 PM

bruce, the fact that Bill Clinton was actively pro-DP and helped make AEDPA a reality had a profound impact on state execution rates. Though more indirect, the Bush Administration's foot dragging on LI protocols has also in part accounted for the current litigation mess.

Of course, the Prez impact is modest compared to the impact of the Justices, but it need not be that way if a Prez was actively concerned about the issue. And if you believe the deterrence literature, he should be for the sake of innocent lives.

Posted by: Doug B. | Nov 12, 2007 6:49:03 PM

A now-retired Republican pol taught me years ago that criminal justice topics require an odd, mirror image strategy that I think applies to this post:

All politicians run to the center on criminal justice, he said, so pols on the left run to the right, and those on the right run to the left. By this logic, if you want to reduce overincarceration pressures, for example, or install limits on capital punishment, he sagely opined, the only pols with momentum in your direction are the right wingers!

It sounds crazy, and it's not always true, but it's true often enough on criminal justice stuff to be a plausible explanation, to my mind, why Clinton might be more "conservative" than Bush on the death penalty, which IMO is an accurate description. Cheers!

Posted by: Gritsforbreakfast | Nov 12, 2007 6:49:50 PM

Oh, and Doug, do you personally actually believe the 74 lives saved per execution statistic, and if not can we please dispense with using it? I hate for that kind of junk stat to get thrown around in respectable arenas like your blog. The kind of bloodbath the prediction implies for states without a death penalty simply has no basis in reality. If I were you I'd consider leaving that one to World Net Daily.

Posted by: Gritsforbreakfast | Nov 12, 2007 6:55:52 PM

They're both crappy on the death penalty. Don't forget, however, Bush's justice department pushing death penalty cases in districts where sensible US Attorneys have not wanted them. Doug may think the Supreme Court puts in too much time on the death penalty; I think the Bush Justice Department does. To little effect in our districts here. A real waste.

Posted by: David in NY | Nov 12, 2007 6:57:03 PM

I think David is correct. The real impact of the Bush presidency on the (federal) death penalty will be seen in a few years, when the increase in capital prosecutions begins to result in more executions.

Posted by: Anon | Nov 12, 2007 8:09:20 PM

First of all, I said "most national Dems", not all Dems. And there's a difference between what is in a politician's heart of hearts and what his policy is. The public knows. And Obama's statements show that he should have next to zero credibility on criminal justice issues. Any national politician yammering about the "just-us system" is simply juvenile.

Second of all, Clinton judges have been a big problem with respect to AEDPA, see, e.g., Berzon, Paez and Barkett.

Third of all, while Bush's failure to take on the judiciary over lethal injection is problematic (well, ok, unacceptable), there is little evidence Clinton would have done more, and somehow I'd be willing to bet that if all of Clinton's judges would resign tomorrow and Bush got to replace them, the lethal injection issues would basically evaporate.

Fourth, Bush is running a war. The death penalty is probably not a huge priority for him.

Posted by: federalist | Nov 12, 2007 8:15:55 PM

The AEDPA was one of the worst laws ever passed by the US Congress and signed by a US president. It (along with the DMCA) is a blight on Clinton's legacy. Does anyone doubt, however, that Bush wouldn't have jumped to sign the AEDPA into law if it had been passed during his presidency? I don't think clinton was any more pro-DP than bush is.

Bush actually gets off on the death penalty. He liked signing death warrants in Texas, it brought a smile to his face. If a penile plethysmograph machine were attached to Bush's genitalia during his signing of a death warrant, it would register sexual arousal. The same is not true of clinton. He supported the DP politically, but he didn't get off on it.

Sure, to the condemned person being executed it probably doesn't make much of a difference if the governor just somberly supports your execution for political reasons or happily masturbates to your death. The bitter taste in the executee's mouth might be just a little bit stronger in the latter case, though.

I do agree w/ a President having a huge impact solely with respect to any SCOTUS justices he gets to appoint. And Bush's appointments will guarantee that the DP remains constitutional. Although, frankly, with a constitution that says (to paraphrase) one cannot be deprived of property, liberty, or LIFE without due process, it seems implicit that the death penalty was not only presumed by the framers, but authorized (as long as there is due process).

I don't see how one can argue that the due process clause does not expressly authorize the death penalty. I'm all for a constitutional amendment to change that, of course.

Posted by: bruce | Nov 12, 2007 9:49:19 PM

Interestingly, here is a quote from Bush's 2005 State of the Union address:

"Because one of the main sources of our national unity is our belief in equal justice, we need to make sure Americans of all races and backgrounds have confidence in the system that provides justice.

In America we must make doubly sure no person is held to account for a crime he or she did not commit. So we are dramatically expanding the use of DNA evidence to prevent wrongful conviction.

Soon I will send to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side."

Money has been provided for training purposes for the last 3 years. Although there will be debate about the effectiveness and extent of the Presaident's commitment--this is the first time that I am aware of any President referring to issues regarding competent capital counsel or the prevention of wrongful convictions in a major national address.

Posted by: ward | Nov 13, 2007 1:38:24 AM

Bruce, Mocking someone on death row means nothing. You can say all sorts of things to the public and they have no legal impact. The public really has little to do with the process. Good thing, too.

For what its worth, I mock people in prison, too. But not as much as I mock non-lawyers. It is a great way to unwind after a hard day.k

Federalist, There isn’t really a way that someone like you (who proudly states that he is not a lawyer) could know what is in Obama’s heart. Heck, I am a lawyer, and I don’t know what is in Obama’s heart. Maybe all day long he just thinks about model trains and he hates this politics thing. Maybe all day long he dreams of pulling the switch on innocent people. Who knows? (I seriously doubt that he thinks about sentencing the way an AUSA, a FPD, or Professor Berman does. But he might be faking it. Heck, acting like a sentencing nerd probably is not the best way to convince people to vote for you. Sorry, DB.)

Second, your comment about “Clinton judges” doesn’t make too much sense. You would need to point to specific decisions by the judges, and show the specific parts of them (copying and pasting the text) that were errors of law. If you can’t do that, then everyone knows that you are just making political points. This might fly on a TV show or on talk radio, but amongst real people you need to cite. Maybe you would be less frustrated with the course of the law if you actually could argue with specificity.

Bush’s appointments guarantee nothing. They have life tenure and they will not be accountable to non-lawyers, or, for that matter, anyone else. If you want to try impeaching justices (which you were unable to do for any of the “Clinton judges” because your arguments are not that persuasive) go ahead. I wish you good luck.

Since the next president will probably be a woman named “Hillary” and there will be a number of new federal judges coming on, you can prepare your impeachment arguments in advance. Indeed, I suspect that Professor Berman might even be on her shortlist. So, get your impeachment arguments ready.

You also were unable to offer a successful amendment to the constitution. You probably want to work on making your arguments more convincing.

Posted by: S.cotus | Nov 13, 2007 7:56:17 AM

The Dallas Morning Snooze story the Prof cites is specifically about Dallas County which is, at best, South Oklahoma rather than Texas. HTH. That being said, it is well known that it has never been, and God willin', will never be against the law to kill a sumbitch in Texas. If my neighbor deserves it, he's gonna git it.

Regarding the rest of this line of comment I believe all the parties mentioned: Osama Obama, Billy & his wife, and Shrub are, last I checked, politicians. That means they are likely to say anything and mean nothing, so the discussion is pretty moot. It's time to add morphine (for everyone!) to the DP procedure and get on with it.

Posted by: dweedle | Nov 13, 2007 9:02:07 AM

"I suspect that Professor Berman might even be on her shortlist."

Go help us! ;)

Posted by: dweedle | Nov 13, 2007 9:04:51 AM

Just to be clear, I don't have any inside information. If I did, I wouldn't have made that post. Therefore, you can conclude that if I don't post about something, I know something more than you know about it.

But seriously folks, if you take out PDs and AUSAs, who else really gives a flying @#$! about sentencing and would seem credible enough to garner bipartisan support?

Posted by: S.cotus | Nov 13, 2007 11:37:55 AM

S.cotus: Since the Constitution is silent on the qualifications for District Court Judge, couldn't we nominate Federalist for one seat and the Prof. for another to satisfy all parties?

Posted by: dweedle | Nov 13, 2007 12:41:08 PM

I wanted DB for the 6th. Federalist can run FEMA.

Posted by: S.cotus | Nov 13, 2007 12:44:31 PM

"You're doin' a heck of job Feddy!"

Posted by: dweedle | Nov 14, 2007 2:43:15 PM

S.cotus, I don't need to cite. But if you want an example of a Clinton judge flouting AEDPA, take a look at Allen v. Siebert. You could also look at SCOTUS' opinion in Middleton v. McNeil.

As for what's in Obama's heart, perhaps "know" is a little bit strong. However, I feel fairly certain that some politician that yaps about the "just-us system" and who whines about the fate of thugs like Mychal Bell is a bleeding heart who, on some level, feels that criminals are victims. In any event, it's unlikely that Obama's advisors are going to let him campaign on the crime issue.

As for no guarantees, you are right there, but I didn't make any guarantees. I was just willing to bet.

Posted by: federalist | Nov 14, 2007 9:09:12 PM

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