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November 27, 2015

Might Prez Obama seek to do something bold on the death penalty in his final year?

The question in the title of this post is prompted by this new AP article, headlined "Obama Still Pondering Death Penalty's Role in Justice System."  Here are excerpts:

Even as President Barack Obama tries to make a hard case for overhauling sentences, rehabilitating prisoners and confronting racial bias in policing, he has been less clear about the death penalty.  Obama has hinted that his support for capital punishment is eroding, but he has refused to discuss what he might call for.

A Justice Department review has dragged on for 18 months with little mention or momentum.  The president recently repeated he is "deeply concerned" about the death penalty's implementation, though he also acknowledges the issue has not been a top priority. "I have not traditionally been opposed to the death penalty in theory, but in practice it's deeply troubling," Obama told the Marshall Project, a nonprofit journalism group, citing racial bias, wrongful convictions and questions about "gruesome and clumsy" executions.  His delay in proposing solutions, he said, was because "I got a whole lot of other things to do as well."

Obama said he plans to weigh in, and considers the issue part of his larger, legacy-minded push for an overhaul of the criminal justice system. White House officials say the president is looking for an appropriate response and wading through the legal ramifications.

Capital prosecutions are down across the United States.  A shortage of lethal injection drugs has meant de facto freezes in several states and at the federal level.  Spurred in part by encouragement from Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg, advocates are debating whether the time is right to push the court to take a fresh look at whether the death penalty is constitutional....

Obama isn't alone in struggling with the issue.  "We have a lot of evidence now that the death penalty has been too frequently applied and, very unfortunately, often times in a discriminatory way," Democratic presidential candidate Hillary Rodham Clinton said.  "So I think we have to take a hard look at it."  She also said she does "not favor abolishing" it in all cases.

For Clinton's Democratic presidential rival, Vermont Sen. Bernie Sanders, the issue is settled. "I just don't think the state itself, whether it's the state government or federal government, should be in the business of killing people," he said.  On the Republican side, candidate Jeb Bush says he's swayed by his Catholic faith and is "conflicted."...

In September, Pope Francis stood before Congress and urged that the death penalty be abolished. Obama specifically noted the comment when talking about the speech to aides. White House spokesman Josh Earnest said Obama was "influenced" by what the pope said. Such hints have death penalty opponents likening Obama's deliberations to his gradual shift toward supporting gay marriage.

Charles Ogletree, a Harvard law professor who taught the president, said: "Though not definitive, the idea that the president's views are evolving gives me hope that he — like an increasing number of prosecutors, jurors, judges, governors and state legislators — recognizes that the death penalty in America is too broken to fix."

White House officials caution that any presidential statement disputing the effectiveness or constitutionality of the death penalty would have legal consequences.  For example, would the administration then commute the sentences of the 62 people currently on federal death row to life in prison?

I suspect hard-core capital abolitionists are growing ever more eager to hear Prez Obama say ASAP that he has evolved now to believe, in the words of Prof Ogletree, that "the death penalty in America is too broken to fix."  But any statement by Prez Obama to that effect would likely trigger a significant backlash among an array of GOP leaders (including most running to be Prez), and could refocus death penalty debate away from persistently problematic state capital cases to higher-profile (and less problematic) federal capital cases like the Boston Marathon bomber.  With another White House occupant coming soon, I am not sure such a change in focus would enhance the success of the broader abolitionist effort in the long run.

This all said, I could still imagine Prez Obama and his Justice Department moving ahead on a number of lower-profile efforts that would continue to advance an abolitionist agenda.  DOJ could file SCOTUS amicus briefs in support of state capital defendants or provide additional funding for research on some of the issues Justice Breyer flagged as the basis for a broadsided constitutional attack on the death penalty.  And I would not be at all surprised if Prez Obama around this time next year, when he is a true lame duck and we all know who will be following him into the Oval Office, does something genuinely bold in this arena.

Speaking of doing something genuinely bold, the headline of this San Francisco Chronicle piece provides one possibility: "Obama considers clemency for 62 federal Death Row prisoners." Here is an excerpt from the extended piece:

The bulk of the more than 3,000 Death Row inmates nationwide, including nearly 750 in California, were sentenced under state law.  They are beyond the president’s authority.  But, by commuting federal prisoners’ sentences to life without the possibility of parole, Obama would stamp the issue as part of his legacy and take a bold action that no successor could overturn.

It is “a quantitatively small gesture that could make the point he’d want to make,” said Stanford Law Professor Robert Weisberg, co-director of the law school’s Criminal Justice Center and a veteran death penalty lawyer.  Like other commentators, he offered no prediction of what action Obama would take, but said the president would probably wait until after the November 2016 election, to avoid voter reaction against whoever the Democratic candidate is.

November 27, 2015 at 02:15 PM | Permalink


I wouldn't put it past Obama. He's an ass, and i am sure he'd love to yank justice away from victims.

By the by, just curious, Doug, do you abandon your argument that he's not a hypocrite on gun violence?

Posted by: federalist | Nov 27, 2015 5:30:44 PM

Federalist, you write "I wouldn't put it past Obama. He's an ass," Ouch!
Sorry to disagree, but I am confident that history will prove him be one of the great Presidents. The "asses" are the the Rebublican nominees for President, bigots, demagogues, panderers, and liars all. Is Donald Trump your kind of guy? Dr. Carson, perhaps, who thinks the pyramids were built by Joseph to store grain? And, by the way, were you ever President of the United States, or did I miss it? And was elected twice. Were you elected once, twice, to anything? Have you ever had the courage to run for office yourself, any office, perhaps president of your junior achievement chapter. Wait, were you president of the Harvard Law Review? I must have missed it. Did you win a Nobel Peace Prize. Maybe I missed that too. Some ass indeed.

Posted by: anon12 | Nov 27, 2015 8:13:06 PM

I count about ten people on federal death row that was sentenced during Obama's presidency.


"I am not sure such a change in focus would enhance the success of the broader abolitionist effort in the long run."

Perhaps so. Not actually executing anyone, he or others in his administration voicing the problems with the death penalty in various respects and other things can be most useful here given it is the end of his term. The whole pardon/commutation issue is also flagged. We will see what happens there, but safe bet is that he won't do something REALLY big of the sort some "hard-core capital abolitionists" might suggest.

The whole "evolve" thing seems to suggest a connection to same sex marriage. There the Administration had the time, more power & Kennedy's vote along with action in multiple states. It was connected to other GLBT issues too like the military where again he had more power and a chance for legislative support.

It's not quite the same thing here. Also, there he supported something like civil union rights especially since the public was not as ready in let's say 2005 for same sex marriage. Again, not sure of the equal fit there in respect to the death penalty.

Posted by: Joe | Nov 27, 2015 8:28:27 PM

anon--all you need to know about what a less-than-bright person our president is---check out his letter defending affirmative action on the Harvard Law Review. Riddled with grammatical errors and poor syntax.

Go look it up. It's embarrassing. I was in college at the time--and I wrote better than that.

And wasn't he the moron who didn't know the difference between liability insurance and casualty insurance? Yes, I believe he was.

Posted by: federalist | Nov 28, 2015 3:03:57 PM

Relax. At heart he's a violent Muslim, so we can count on him to keep executions going.

Posted by: Jumpin Jehosephatz | Nov 29, 2015 1:06:25 PM

One nice thing about Obama, as editor of the law review, he did nothing. He was lazy and shiftless, so a classmate on the law review informed me. He did no real harm.

A famous constitutional law professor, disagreed. He was not an affirmative action choice. Grading was anonymous, and they did not lower their standards. On the other hand this professor said, in a calendar book he kept, at the start of 1L, he wrote, Obama has arrived. They knew by 1L, they wanted to make him President of the United States. And these Harvard assholes did.

Posted by: Supremacy Claus | Nov 29, 2015 4:12:02 PM

Anon12. Obama stole the election by having illegal aliens vote for him, and black people vote twice.

Posted by: Supremacy Claus | Nov 29, 2015 4:16:43 PM

I agree with Ogletree, the death penalty is broken. It was broken by abolitionists. They should not benefit from their bad faith efforts. I have argued, it should be banned, to end their employment, to punish this lawyer traitor, subhuman, reptilian filth.

Then the death penalty should go underground, in general population. The sentence should be passed by guards and supervisors, orchestrating the assassination by LWOP inmates. These people have far more common sense, knowledge, and morality than all appellate judges now on the bench.

Posted by: Supremacy Claus | Nov 29, 2015 4:23:38 PM

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