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.