Death penalty decisions loom for Barack Obama
By: Josh Gerstein
June 21, 2009 07:03 AM EST
For the first time in his career, President Barack Obama may soon confront one of the most weighty and unsavory decisions that a chief executive must make, whether to put a murder convict to death.
The decision could land on Obama’s desk within a matter of months, due to cases winding their way through the federal courts. And while Obama is on record supporting the death penalty for particularly heinous crimes, that’s a far cry from deciding whether a specific man’s life should be taken or spared.
“The death penalty in the abstract is one thing. The reality of the death penalty and all of its nasty details is a very different thing,” said Dianne Rust-Tierney of the National Coalition Against the Death Penalty. “This is something that this president is not the only one to face…..Having seen this thing in practice, you see it as a very different animal.”
Already, with little press attention or protest from the anti-death penalty camp, Attorney General Eric Holder has authorized federal prosecutors to seek the death penalty for at least four defendants since Obama took office. In all, 55 men and two women are on federal death row, death-penalty opponents say.
But the timing of Obama’s first death-penalty decision is likely to be dictated by a case pending in
The cases involve three members of a
If the stay is lifted and execution dates are set, any of the men could ask the president to step in. And clearly, death-penalty opponents hope they have a sympathetic ear in Obama, despite his support for the limited use of executions. They hope he will try to impose more safeguards in federal capital cases, and even spare some prisoners. And they note that Holder once authored a ground-breaking federal study that found racial disparities in death penalty cases.
As a state senator in
And in his book, “The Audacity of Hope,” Obama said he saw little evidence that the death penalty is a deterrent.
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Still, he is on record supporting the ultimate penalty for “heinous” crimes — even in some cases where it has been found unconstitutional by the Supreme Court. During last year’s campaign, he said he disagreed with a 5-4 decision the justices issued holding the death penalty unconstitutional in a child rape case where the child was not murdered.
“I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances, for the most egregious of crimes,” Obama said following the court’s ruling last June. “I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that that does not violate our Constitution.”
As president, Obama has been silent on the topic. A White House spokesman said the counsel’s office is aware of pending death penalty cases but had not started a formal policy review of how Obama might deal with them.
“The Attorney General is reviewing department policies across the board, including those dealing with capital cases, and has made no final determinations with respect to any new policies. As he said at his confirmation hearing, he is open to the idea of a new study,” Justice Department spokesman Matthew Miller said. A new study would likely have the practical impact of deferring Obama’s first fateful decision on the death penalty.
But death penalty proponents say they doubt Obama will take a major stand against the death penalty as president.
“I don’t believe that Obama is going to rock the apple cart too much,” said Rusty Hubbarth of Justice for All. “The vast majority of Americans are fully in favor of capital punishment if the safeguards are there.”
One longtime opponent of the death penalty noted that all crime issues have a far lower profile now than in the 1990s – making support or opposition to the death penalty far less of a hot-button for a Democrat like Obama. “Fear of crime was one of the top issues. Now, it’s off the radar. The economy is Number 1, 2 and 3,” said Richard Dieter of the
For much of President George W. Bush’s time in office, the federal death penalty was effectively halted while the Supreme Court considered cases challenging the so-called cocktail of lethal injection drugs used by most states and the federal government. In April 2008, the high court cleared away the main obstacle to further federal executions when the justices ruled, 7-2, that the lethal drugs didn’t present an unconstitutional risk of cruel and unusual punishment.
Clearing the way for a death sentence was nothing new for Bush when he took office in 2001. He presided over 152 executions as governor of
Likewise, President Bill Clinton was no stranger to what Justice Harry Blackmun once called “the machinery of death.”
However, no federal inmate was executed on
The execution of
Obama will likely be the first presidential novice to face the decision about whether to send a man to death since 1963, when President John F. Kennedy rejected a clemency request from a Michigan man sentenced to death in the federal courts for murder and kidnapping, Victor Feguer. He was hanged.
Even if the
Execution dates are typically set by the Federal Bureau of Prisons at least 120 days in advance. Under federal regulations, a condemned inmate has 30 days from the notice to ask the president to commute the sentence, giving the president 90 days to mull the decision. Of course, the president can order a reprieve or commutation at any time, within or outside the official regulations.
Other cases are still in the courts.
In March, prosecutors in
In other cases, Holder has authorized plea bargains and declined the death penalty, including at least one case where Bush Administration officials were pressing for death.
More cases loom. On Tuesday, a federal judge in
And Obama will have to decide whether to pursue the death penalty in new military commissions he has proposed for war-on-terror prisoners still housed at Guantanamo.
Of course, deciding whether to grant clemency to a condemned inmate would not be the first life-or-death decision Obama has faced as commander-in-chief at a time of two wars. And in April, he authorized the use of lethal force against pirates holding a
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs