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November 29, 2008

Notable second-term Presidential execution realities

Over at Capital Defense Weekly, Karl has this intriguing observation in his thanksgiving post:

Not that long ago many commentators were realistically expecting 200+ executions a year by now, especially following the election of a President many had called the Texecutioner.  This year’s total executions will be no more than 37 (and possibly just 36), the smallest number since 1994.

Looking back at modern year-by-year execution numbers here at DPIC, I figured out that there actually has been less than 200 executions in the United States through all of President Bush's second term in office (189 so far, to be exact). 

In notable contrast, there were nearly twice as many executions in the United States through President Bill Clinton's second term in office (344 by my count, to be exact).  Many death penalty abolitionists were quite disappointed by the work of the Clinton Administration, but only now have I realized that President Clinton's second term was nearly twice as deadly and President Bush's second term when measured in terms of total executions nationwide.  (I think the numbers might be similar if measured in terms of death sentences, but I do not have ready access to a year-by-year accounting of death sentences imposed nationwide.)

These numbers suggest that perhaps President Bush ended up living up to his claim of being a compassionate conservative at least in this one respect.  It also suggests that the death penalty abolitionists on the Senate Judiciary Committee ought to have some sharp and tough questions about the modern administration of capital punishment to ask Eric Holder when he comes before the Committee for his AG confirmation hearings.

November 29, 2008 at 11:03 AM | Permalink


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Doug, this seems like a rather silly post, especially from someone, like you, who is so attuned to the variations in application of the death penalty from state to state.

True, Clinton was a terrible disappointment to death penalty abolitionists. (See AEDPA, Ricky Ray Rector, etc.). But as you know, the 50 or so people on federal death row are a tiny drop in the bucket compared to the 3000+ on the death rows of various states. And while Bush's AGs have not pushed those federal death cases as fast as they might have, most federal death row inmates have plenty of further appeals available to them. Even if Bush had sought to move those cases quickly, that would have had very little impact on the total number of executions in the U.S. over the past four years. At the same time, there is very little Clinton could have done to slow executions during his second term (other than veto AEDPA), as the speed with which individuals are executed is largely a state matter. (Except perhaps in the 3rd and 9th Cir. where federal judges do what they can to slow matters considerably.)

Posted by: dm9871 | Nov 29, 2008 3:12:07 PM

I don't see how this statistic has anything to do with President Bush. Baze? The fact that juries are finally accepting the notion that life without parole means exactly that? Growing awareness of the greater financial cost associated with executing someone rather than locking them up for life along with the rest of the prison population? Growing disillusionment with capital punishment in general, as evidenced by more jurors being excused for cause for death scruples than in the past?

Bruce Cunningham

Posted by: | Nov 29, 2008 9:03:06 PM

Bruce and dm9871: I think both of you underestimate the impact of the President and his Justice Department on setting the national death penalty mood and agenda. Prez Clinton's vocal support for AEDPA (not to mention his general tough-on-crime philosophy) played a significant "atmospheric" role in the large number of state executions during his second term. Similarly, Prez Bush's disinterest in major AEDPA reform (not to mention his general disinclination to have the feds push resolution of the lethal injection mess) in part explains the relatively low number of executions during his second term.

Please understand that I am not asserting that the Prez can really directly control the number of state executions. But the fact that Karl Keys rightly noted in his post that Prez Bush's election was thought to mean a doubling of yearly executions confirms my sense that serious capital punishment watchers recognize the role of the Prez setting the national death penalty mood and agenda. And I compare second term numbers because that's when the tone and agenda set by the nation's leader is most likely to echo through state systems.

As you look back on these issues, consider also the fact that the ABA was calling for a nationwide DP moratorium in 1997, early in Clinton's second term. But rather than engage seriously with the ABA's expressed concerns, the Clinton Administration readily disregarded the issues stoplighted by the ABA and even pushed ahead with various federal death penalty initiatives.

My goal with this post is not to "prove" any direct/clear causal connections, but rather to encourage reflection on how expectations and predictions about the death penalty and executions are rarely accurate and also do not readily conform to expected political party lines.

Posted by: Douglas A. Berman | Nov 30, 2008 10:04:30 AM

I think you just can never resist a chance to bash a Clinton. Bush had no control over state executions as President and have you forgotten the number of times Ashcroft and Gonzales (particularly the former) insisted the death penalty be sought over the objections of local prosecutors?

Posted by: TalkLeft | Nov 30, 2008 1:49:57 PM

What about John Ashcroft's death penalty legacy? He served under Bush: The National Law Journal:

Currently, 71 federal death penalty trials are pending nationwide, according to Kevin McNally, a lawyer at the Federal Death Penalty Resource Counsel Project, which assists capital defenders and functions as a clearinghouse. In at least 15 of the pending cases Ashcroft overruled local prosecutors, McNally said. All told he has overruled prosecutors on at least 42 of 128 capital defendants (33 percent). He overruled prosecutors the other way -- declining to request the death penalty -- on eight defendants. Though disagreements between the Justice Department and U.S. attorneys are not always disclosed, McNally said that his information comes from defense lawyers and public records.

Posted by: TalkLeft | Nov 30, 2008 1:55:22 PM

TalkLeft: I think you often resist the chance to reflect on the broader impact of Bill Clinton decision to move right on crime and punishment.

When a leading Democrat "gets tough" for the sake of politics, few national leaders can or will be able to resist the move to toughtness. Consequently, when Bill Clinton decided to be hard on the death penalty, he set an environment in which very few politicians at the state level were prepared to vocally resist pro-DP rhetoric (save the ABA, which started the call for a national moratorium in 1997).

Plus, because I am a supporter of a sensible and well-run capital system, I am not troubled by Main Justice over-ruling decisions by local prosecutors not to seek the federal DP when they thought this decision was not justified and did not effectuate national death penalty policy. (Indeed, I would like to see the entire DP system taken out of the hands of the states and put in federal control so that it could be run more effectively, efficiently, transparently and justly.)

I hope you and other commetors can resist the instinct to praise Prez Clinton and attack Prez Bush on this front. Or, at the very least, I hope commentors might engage with the data and backstory on this matter. Put simply, Clinton sought to ensure more state executions through his support for AEDPA, and he succeeded; Bush did not worry or even discuss state executions much, and the yearly execution rates went down without any serious push back from the feds.

Also, recall that Prez Bush in a State of the Union ensuring adequate funding for capital defense (though he never really followed up). Did Prez Clinton ever have a line like that in a SotU

Posted by: Douglas A. Berman | Nov 30, 2008 3:14:30 PM


As a liberal and a criminal defense attorney, I think Bill Clinton was terrible on criminal justice issues. But I wonder to what degree he set the tone for those at the state level and to what degree he reflected that tone. After Willie Horton ads, Dukakis' debate response about the rape of his wife, and the "card carrying member of the ACLU" stuff, I think Clinton decided he wasn't gonna lose on the issue of criminal justice. Clinton cynically exploited that race-tinged crime-fear that gripped the nation during the late 80s and 90s. (Perhaps at no moment more so than flying home to Arkansas to "preside" over the execution of a man with an IQ of 55.) But Clinton didn't create it. It was central to the culture.

That is not meant to be a defense. Just an explanation.

Posted by: dm9871 | Nov 30, 2008 9:42:42 PM

All fair points, dm9871, but I often believe that, as the old saying goes, if you are not part of the solution, you are part of the problem.

Posted by: Douglas A. Berman | Dec 1, 2008 12:06:11 PM

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