Stat Counter

View My Stats

Sunday, December 28, 2008

Obama and the death penalty

President Obama will have a full plate of immediate, if not emergency concerns, when he takes office. Death penalty policy understandably will not be the top priority for his administration.

Nonetheless, as chief executive, he will need to confront the issue deeply and broadly not long after he takes office and all during his administration thereafter.

A president influences the issue in many ways, including appointment of U.S. Attorneys throughout the nation; appointment of federal judges at every level, including of course the Supreme Court; appointment of an Attorney General and subordinates; control over the budget for capital prosecution and defense. With all these actions, the president sets the course on responses to habeas corpus petitions and other appeals and has specific constitutional duty of considering pardons and clemency.

Barack Obama is the first president in memory to have made statements that evince doubts about the constitutionality and general efficacy of capital punishment. He has written that he doubts the claim that it is a deterrent, is troubled by the racial and social inequity inherent in its enforcement, and has stated variously that he is not a "cheerleader" for the death penalty and that his views on the subject are "complicated."

Obama’s depth of thought was well documented during his campaign so it should not be surprising that this deliberative man should view the issue as complex. As a state legislator in Illinois he was active in the practical debate that arose when Governor Ryan declared a moratorium after revelations about its inadequate justice system which included proof of incompetent defenses, concealed evidence of innocence, leading to innocent people condemned to death. Obama actively supported reforms, but also agreed to expanding the number of crimes for which the death penalty could be sought (including murder of an elder or a child), while at the same time opposed expansion to include gang murders, arguing that premeditation was adequate and fearing that "gang" was a buzzword for racial, ethnic and social bias.

During the campaign, Obama trod a tightrope on the issue, fearful of providing a wedge issue to conservatives. In this policy, Obama learned his Dukakis / Clinton lessons, insisting that he favored the death penalty for Osama Bin Laden and other Al Qaeda terrorists and he declared his disapproval of the recent Supreme Court decision overturning the death penalty for child rape without murder.

Despite his campaign positions supporting capital punishment in principle, which depressed opponents of the law, it is still clear that President Obama presents the greatest hope for policies that at least limit the expansion of the death penalty. Moreover, he has the temperament, intellect, and standing to at least begin to swing the pendulum of public opinion away from support of capital punishment.


  1. ...President-elect Obama's (P-e O)position on capital punishment seems perhaps nuanced to Mister Borenstein but to others, myself included, P-e O's position emerges as intellectually primitive and as vulnerable. P-e O has stated that he would reserve capital punishment as a potential sentencing option only for individuals whose conduct has so offended the social order that no alternative other than state sponsored homicide seems as a means of making things whole appropriate.

    All egregious murder should be perceived as offending the social order. To split hairs, therefore, about which murders are most offensive not only reduces decision making about potential capital sentencing to a sort of poorly defined type of prosecutorial polling but in fact has the effect of one of the problems to which P-e O alludes - that is, it reduces decision making to judgements about which victims are the most potentially sympathetic. The ethnic and racial vagaries of the system tend to favor Caucasian victims. P-e O's criteria emerge as dangerous.

    The solution to to the dilemma is abolition. It is a solution embraced by more than sixty-five per cent of the nations of the world. The United States of America, moreover, can not continue to excoriate countries about poor human rights records until it unconditionally and unequivocally honours its own obligations to uniformly endorse that right within its own borders. Anything less is both hypocritical and in terms of international relations is counterproductive. In peace.

  2. ...modification to what preceded - that is, the last lines should read as follows:
    "...until it unconditionally and unequivocally honours its own obligations unformly within its own borders to endorse all rights embodied in the Universal Declaration of Human Rights, rights which include the right to life. Anything less is both hypocritical and in terms of international relations is counterproductive. In peace."

  3. kbandell's comments represent the abolitionist principle reminiscent of those who called Lincoln weak for his tepid policy toward slavery during his campaign and early in his presidency. Obama would face sterner odds if he dared to advocate the abolition of capital punishment. Despite the mounting sentiment for abolition -- spurred by DNA reversals of convictions -- there is no constituency demanding abolition at this time. That being said, Obama has an opportunity to lead, to educate, to influence, and for the moment, that is all we can expect.