Will Mr Obama bring the United States any closer to abolishing the death penalty?

 6th February, 2009

On November 4 2008, I went downtown to Times Square with a friend after the inevitable result had come through and mingled with the crowd of New Yorkers celebrating the end of the hated Bush era. They were all young and enthusiastic and many of them convinced that they were on the eve of a new dawn. We even saw a red flag, complete with hammer and sickle. The scene was similar, I guess, to that in streets of Paris on May 10 1981 and, no doubt, to that enacted on many other, less iconic occasions.

My feelings were mixed, but my concern had little to do with run-of-the-mill domestic American issues. I had absolutely no doubt that Mr Obama’s policy stance once elected would be moderate, because that is what the American political system, with its elaborate collection of checks and balances, is designed to achieve. I was anxious about the direction of American policy in the Near East, because I could sense that it was a subject about which Mr Obama felt passionately.

Yet I also harboured a hope, though not one about which I would have been waving flags.

Almost two-thirds of Americans support the death penalty, a figure that fluctuated considerably in the past and that has been falling slightly in recent years1.

Of course, in the United States, which is the only Western democracy that deals with crime using capital punishment, the death penalty is not a primary concern of the President, being above all an issue for the Courts and, occasionally, the state executives and legislatures. Thus it was never a major subject during the campaign.

Mr Bush’s stance in favour of the death penalty, and his record as one of Texas’s most zealous governors in sending convicted murderers to the death chamber, are well-known.

What has been less discussed and, on balance, gives me some grounds for hope, is that Mr Obama’s record, prior to standing for election, is very different. In 1996, he went on the record opposing the death penalty: when he first ran for the Illinois state Senate in that year, he said in a campaign questionnaire that he opposed capital punishment2. As an Illinois legislator, he helped rewrite the state’s death penalty system to guard against innocent people being sentenced to die. The new safeguards included requiring police to videotape interrogations and giving the state Supreme Court more power to overturn unjust decisions. He also opposed legislation making it easier to impose the death penalty for murders committed as part of gang activity. Mr Obama argued the language was too vague and could be abused by authorities.

Mr Obama, on the other hand, being an extremely cautious man, only addressed capital punishment once during the campaign, when the US Supreme Court ruled in Kennedy v. Louisiana that sentencing someone to death for raping a child is unconstitutional (effectively ruling out capital punishment for crimes other than murder), a view with which he expressed disagreement at a press conference in Chicago on June 25 2008:

I think that the rape of a small child, six or eight 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 does not violate our constitution.

In this 2004 footage taken from the second debate between Alan Keyes and Barack Obama, candidates for the U.S. Senate in Illinois, Mr. Obama states he favours the death penalty, in principle, in certain rare circumstances.

This mirrors pretty closely his position when he stood for the US Senate in 2004: his support then for the execution of child rapists, putting him more to the right than the most conservative Supreme Court of modern times, was very disappointing to me. Yet it wasn’t invented for the presidential election; it dates back to The Audacity of Hope:

While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes—mass murder, the rape and murder of a child—so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.

Those who imagine that the debate on capital punishment in the United States is but another facet of a Republican-Democrat divide should recall that Mr Obama’s rival for the nomination, Mrs Hillary Rodham Clinton, like her husband, is an unbending supporter of capital punishment. During the 1992 presidential campaign, Mr Clinton famously returned to the state to preside over the execution of mentally-retarded Ricky Ray Rector. And no administration in American history has done more to speed executions than Mr Clinton’s. In 1996, he pushed for and signed the Anti-Terrorism and Effective Death Penalty Act, despite the fact that that legislation infringed habeas corpus.

It should also be remembered, of course, that Michael Dukakis famously lost the 1988 presidential election after having voiced his opposition to capital punishment in all circumstances3.

While Mr Obama’s caution will be a disappointment to those, like me, who might have hoped that the White House would take an active stance towards abolition, what is more likely to occur is a change in attitude. The Bush administration systematically encouraged the effective use of capital punishment, including by pushing for more frequent use of the federal death penalty. It can be hoped that the Obama administration will put an end to that practice. The new President’s professional grounding in constitutional law will have given him a sensitivity to these issues that his predecessors lacked.

Mr Obama will, I believe, push for criminal justice reform. He can also indirectly influence death penalty decisions through his nominations to the Supreme Court, where Justices John Paul Stevens — a liberal on the death penalty despite being a Republican appointee — and Ruth Ginsburg may well need to be replaced. I can only hope that the debate on the issue will continue to result in evolving standards of decency, which have already shifted sufficiently to provoke debate on the constitutionality of lethal injection and put an end to the practice of executing minors, thus edging further in the direction of complete abolition.

  1. Since 1936, Gallup has been asking Americans, Are you in favour of the death penalty for a person convicted of murder? The percentage of Americans in favour of the death penalty has fluctuated significantly over the years, ranging from a low of 42% in 1966, during a revival of the anti-death penalty movement, to a high of 80% in 1994. More recently, public opinion on the death penalty has been more stable, with upward of two in three Americans supporting it. ↩︎

  2. Part 1 of the questionnaire; part 2 of the questionnaire↩︎

  3. The issue of capital punishment came up in the October 13, 1988, debate between the two presidential nominees. Because she knew the Willie Horton issue would be brought up, Mr Dukakis’ campaign manager, Susan Estrich, had prepared with Bill Clinton an answer highlighting the candidate’s empathy for victims of crime, noting the beating of his father in a robbery and the death of his brother in a hit-and-run car accident. However, when Bernard Shaw, the moderator of the debate, asked Dukakis, Governor, if Kitty Dukakis [his wife] were raped and murdered, would you favor an irrevocable death penalty for the killer? Dukakis replied, No, I don’t, and I think you know that I’ve opposed the death penalty during all of my life, and explained his stance. ↩︎