The Problems With the Death Penalty Are Already Crystal Clear

The president has commissioned yet another study of lethal injections. He'd be better off lobbying the Supreme Court and Congress to make changes.
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The "real problem" with the death penalty in America today isn't a mystery. The real problem is that we all know what the problems are but cannot or will not muster the political will and moral courage to fix them. So while it is laudable that President Obama took the time to say he is deeply troubled by the botched execution in Oklahoma early this week—it beats saying nothing at all—his solution, commissioning a new study from his attorney general, is mostly a waste of time.

This is especially true since the study the Justice Department has announced it will undertake—"a relatively narrow review," Peter Baker reported in The New York Times—will focus only on lethal-injection procedures instead of structural flaws. But the problems with lethal injections today are both well-documented and indisputable: The procedures are shrouded in secrecy and thus prone to error, as we saw last week when Oklahoma all but tortured Clayton Lockett to death.

But the broader problems with capital punishment are well-known, too. The application of the death penalty is racially disparate, geographically arbitrary, and based upon the economic status of capital defendants. Nearly 40 years after the U.S. Supreme Court reinstated the death penalty, the capital regime is a mess. Ten days ago, Stephen Bright, president of the Southern Center for Human Rights, laid it all out in a speech at the United Nations:

The death penalty is imposed in the United States upon the poorest, most powerless, most marginalized people in the society. Virtually all of the people selected for execution are poor, about half are members of racial minorities, and the overwhelming majority were sentenced to death for crimes against white victims.

Many have significant intellectual disabilities or suffer from severe mental illnesses. Many others were the victims of the most brutal physical, sexual, and psychological abuse during their childhoods and lived on the margins of society before their arrests. Some are innocent.

They are subject to discretionary decisions by law-enforcement officers, prosecutors, judges and jurors that are often influenced by racial prejudice. Because of their poverty, they are often assigned lawyers who lack the skills, resources and inclination to represent them capably in capital cases.

The president would accomplish more by encouraging a candid conversation about these issues. But despite waning support for capital punishment and recent evidence that America executes innocent people, it's unlikely this administration wants to pick that fight now, with this Congress and this Supreme Court. With a few notable exceptions, those two branches of government have been hostile to even modest reforms to make the death penalty fairer and more just.

Fairer and more just and quicker. The notion that it takes too long already to implement capital punishment, expressed by Justice Antonin Scalia in February, isn't likely to ease. Perhaps it is too much to ask that lawmakers and judges remember that until just a few years ago, when the manufacturer of sodium thiopental stopped making it, litigation over the manner of death was some of the least controversial in death-penalty law. What's happening now is a new problem, not an old one.

Still, there are at least two things Obama could do to help. In the name of transparency, the Justice Department can begin urging the Supreme Court to review and endorse current state-court challenges to lethal-injection secrecy, so that state officials are forced to draw back the blinds on their work. And in the name of accountability, the feds can urge Congress to adopt uniform lethal-injection protocols while amending a federal law that has neutered federal review of capital cases.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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