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.
1. Lobbying the Supreme Court: Even as the controversy over lethal-injection secrecy has spread from state to state to state to state over the past three years, and even as the Justice Department is in the midst of a review of federal procedures, the administration has refused to intercede on behalf of capital defendants in recent challenges to dubious state rules. So far, the Justice Department's proposed solution to the crisis over injection drugs was to ask a federal appeals court to allow the importation of a drug that had been blocked by the FDA and a trial judge.
The Justice Department could instead begin to file briefs supporting prompt Supreme Court review of state challenges. The feds could argue that there is a strong federal interest in bringing order to the chaos that surrounds lethal injections and that the U.S. Constitution is implicated when states like Oklahoma, Texas, Missouri, Arizona, Georgia, and Louisiana refuse to provide even basic information about the new, untested drugs they seek to use to execute prisoners. The justices always are free to ignore the solicitor general, but these appeals couldn't hurt.
We know that at least three justices on the Court are interested in taking one of these injection challenges to further define the scope of a condemned person's right to know the manner in which he will be killed by the state. In Taylor v. Lombardi—the first case in Missouri since Herbert Smulls was executed while his appeal was still pending—Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor all voted to stay Michael Taylor's execution. Would support from the Justice Department have pushed Stephen Breyer and Anthony Kennedy to do likewise? The feds should try so we can know.
2. Calling for legislative action: The White House could formally ask Congress to amend the Antiterrorism and Effective Death Penalty Act (AEDPA), a law passed in the angry wake of the Oklahoma City bombing. The law was designed to curb excessive appellate litigation in capital cases—and it certainly has. But, as legal scholar Lincoln Caplan recently pointed out, it also has precluded federal judges from undertaking substantive review of capital cases that are not frivolous. The law has been interpreted so broadly that is has resulted in manifest injustices.
An amendment reanimating the writ of habeas corpus by limiting the scope of the AEDPA, one that establishes a uniform national standard for lethal injections, wouldn't just make it harder for states to hide shoddy executions. It would make it more likely that federal courts could recognize and remedy wrongful convictions in capital cases before the innocent are executed. Congress won't go for it, especially in an election year, especially with the easy retort—it's a states'-rights matter!—at hand, but this is the most direct solution to the problem that arose last week in Oklahoma.
The Obama Administration could also decide, as it did the Defense of Marriage Act, another dubious Clinton-era law, that it will no longer enforce the law in cases in which its application violates the Constitution. The two laws are very different, of course. The AEDPA involves at its core a standard of judicial appellate review. But federal judges surely would take notice if, in some of these capital cases, the Justice Department were to file a brief saying, in effect: "If you are going to railroad this capital defendant, we want no part of it."
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