President Obama soon will have to face and make yet another tough and potentially controversial decision. The issue this time is the federal death penalty. Currently there are nearly five dozen prisoners sitting on federal death row. The majority of the condemned are African-American.
Since the federal death penalty was ramped up during the Clinton administration only three federal prisoners have been executed in the past decade, the most notorious being Oklahoma City mass bomber Timothy McVeigh. Clinton, though no opponent of the death penalty, did not have to sign off on a death warrant. McVeigh was executed on President George W. Bush’s watch. Bush was a staunch backer of the death penalty signing off on a staggering 152 executions during his stints as Texas governor. But Obama likely won’t have the luxury of evading making a decision on a death sentence as Clinton did or toughening it out and simply saying and doing nothing as Bush did. This is where it gets sticky.
The Bureau of Prisons which sets execution dates says that it will set a date for the execution of Jeffrey Paul convicted of the murder of a retired National Park Service employee in Arkansas in 1995. Obama has been conflicted on the death penalty and Attorney General Eric Holder has also has expressed reservations about the policy. Obama pushed legislation as an Illinois state senator that put severe limits on suspect interrogations and the type of crimes that the death penalty could be applied to. In his groundbreaking book, The Audacity of Hope, he made it plain that he did not regard the death penalty as a deterrent.
During his stint as Deputy Attorney General in the Clinton administration, Holder did a comprehensive review of the gaping racial disparities in the death penalty and called the findings “very disturbing.” What was disturbing was that those most likely to get the death penalty were overwhelmingly African-American and Hispanic. Holder called for reforms that included giving federal prosecutors more freedom to seek or not seek the death penalty, and to not seek it in states that did not have the death penalty.
The lop sided racial imbalance in the death penalty sentences was clearly an issue that Holder sought to address in the mild reforms. The reforms probably did much too at least momentarily reduce the number of death penalties federal prosecutors sought, and this slowed down the flow to federal death row. The last federal execution was seven years ago.
But things have changed. Crime is not the dominant issue of a few years ago. There has been some softening in public attitudes on the death penalty, and the Supreme Court has barred executing the mentally disturbed and teen offenders. But public support of the death penalty support is still strong, executions are still carried out with little public outcry, and the fear of terrorist attacks is still a major public concern, and the public supports tough measures against terrorists. Holder has authorized death penalty sentences in some select cases.
President Obama has also taken a different public tact on the death penalty. During the presidential campaign, he rapped the Supreme Court’s decision that ruled the death penalty unconstitutional in a child rape case where the child wasn’t murdered and has made it clear that their are “some “heinous crimesthat warrant the death penalty.
The two questions then are: what are those crimes, and under what circumstances would Obama stand aside at the moment the inevitable appeal for clemency, commutation, or the postponement of a death sentence, in this case Paul’s, landed on his desk for a decision? Paul’s attorney is asking that the death penalty sentence against him be scrapped based on “severe mental illness” claim. That may or may not happen. If not that would clear the way for the execution which could legally be carried out within 120 days after the final court rejection of his filing for dismissal of the death penalty verdict. The final decision would then whether to intervene or not would then be up to Obama. So far neither Obama nor Holder has publicly given any indication of how they would proceed in such a case.
Death penalty opponents, though, are not optimistic. There’s the shifting conservative political climate, the fast approaching start of the 2012 presidential campaign season, and the issue Obama must deal with of how to apply the death penalty to the military commission he’s proposed for terrorism prisoners at Guantanamo. The conflicting issues of terrorism, politics, and of course race make the decision over what, when and how to use the federal death penalty yet another tough decision that President Obama will have to face and make.
Earl Ofari Hutchinson is an author and political analyst. He hosts nationally broadcast political affairs radio talk shows on Pacifica and KTYM Radio Los Angeles. Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson and on thehutchinsonreportnews.com and view The Hutchinson Report on http://www.ustream.tv/channel/hutchinson-report-tv>