I will be speaking in Ann Arbor tomorrow at the Michigan Journal of Law Reform’s symposium on the death penalty. As I was preparing for my talk, I was pleased to see that the topic of capital punishment made a brief appearance at last night’s Democratic debate in New Hampshire. NYT Transcript here. Presidents have a role with respect to the imposition of capital punishment at the federal level, and it is important to know their views and to get a sense of how they understand the death penalty. These are among the most important cases the federal government prosecutes. So it should be part of the national political conversation. Problem is, the responses from Hillary Clinton and Bernie Sanders were to varying degrees ill-informed or sophomoric, and at moments bordered on incoherent. Mercifully, it turns out, the responses were relatively short.
Secretary Clinton’s response was slightly better, as she seemed to understand the sense in having a limited death penalty in light of the truly horrific crimes that have been, and unfortunately will likely continue to be, committed in this country (she specifically noted Oklahoma City, which was an appropriate example). Points for that. She also insisted that death penalty cases meet high standards of proof (of course, they already do – it’s proof beyond a reasonable doubt, just as in any other criminal case) and that defense attorneys provide effective assistance (again, they must already do so, and there is a constitutional claim available where they do not). Nothing deep-thinking about the response, but nothing really offensive either.
But her answer went slightly off the rails when she seemed to suggest that the Supreme Court find a way to distinguish between the States and the federal government with respect to the constitutional validity of capital punishment. She said, “I do for very limited, particularly heinous crimes believe it is an appropriate punishment, but I deeply disagree with the way that too many states are still implementing it. If it were possible to separate the federal from the state system by the Supreme Court, that would, I think, be an appropriate outcome.” This seemed to arise, in part, from an earlier statement that Clinton had made, which Rachel Maddow recalled, in which Clinton said she would “breathe a sigh of relief if the Supreme Court abolished the death penalty nationwide.” Ugh (cue sigh).
As I understood this response, she appears to believe that the federal system is sufficiently narrow and fair to survive constitutional attack. Good. But the implication of her statement was that State death penalty systems are not, and the Court, if possible, should strike down the State systems but preserve the federal system. I take it from the qualification in her response that she does not actually believe such a distinction really is possible, though it is troubling that she would believe such an outcome “appropriate.” Given the generalized nature of her response, it made me wonder whether she understands how various states implement their death penalties, and how varied the different systems can be. I can assure her that it is not possible for the Supreme Court to keep the federal death penalty but strike down all of the State death penalties, at least as she framed the issue. Individual State practices may be constitutionally problematic, but the idea that no State system could survive at all is preposterous. What would be the relevant constitutional criteria for upholding the federal death penalty and striking down the state death penalties? She doesn’t say.
That is not to say that her response was not satisfactory in some respects. It was, in fact, comforting to witness the reality that Hillary Clinton is to the right of some Republicans on the issue of capital punishment – and that her precipitous move to the Left in order to compete with Sanders’ socialism has not come full circle. She therefore remains capable of some good sense, even in this year’s Progressivism competition (and does anyone doubt her coming move to the center for the general election?).
The Sanders response had to be some kind of a mistake. He said that “too many innocent people,” including many minorities, had been “executed” even though they were “not guilty.” Perhaps he meant “convicted,” rather than “executed. ” For if he really meant “executed,” he is clearly and badly misinformed, and his statement cannot be taken seriously. It must have been a misstatement. Beyond that, he unsurprisingly argued for abolition, but – to my surprise – he apparently favors life without parole. I would have thought that Sanders would also oppose LWOP, but apparently he has not read the memo from the Criminal Justice Left that LWOP is bad. Unfortunately, no one bothered to follow up with Sanders by asking him what we should do with a lifer who commits a murder while serving his life sentence.