Hillary Clinton Wants to Have It Both Ways on the Death Penalty
At a town hall event in Columbus, Ohio, tonight, Hillary Clinton took a question from Ricky Jackson, who was exonerated in May after 39 years in prison for a murder he didn’t commit. Jackson asked Clinton whether she would abolish the death penalty; she said that she would not.
Jackson spent two years on death row after his 1975 conviction—his death sentence was commuted on a technicality in 1977 (there had been a mistake in jury instructions). Given that, and given the fact that 20 of the337 people exonerated since 1989 on post-conviction DNA tests spent time on death row, he asked Clinton to justify her pro-death penalty position.
“The states have proven themselves incapable of carrying out fair trials that give any defendant all the rights that defendants should have, the support that defendants’ lawyers should have,” Clinton said. “And I would breathe a sigh of relief if the Supreme Court or the states themselves began to eliminate the death penalty.”
“Where I end up is this—and maybe it’s a distinction that is hard to support—at this point, given the challenges we face from terrorist activities in our country that enter under federal jurisdiction, for very limited purposes it can still be held in reserve for those.”
Clinton invoked the Oklahoma City bombing and 9/11, advocating for “a very limited use of [capital punishment] in cases where there has been horrific mass killings.” She added: “It would only be in the federal system.”
This was meant to be reassuring, but it is not. Not only does this proposal put an inordinate amount of faith in federal prosecutors not to cheat the system in the pursuit of vengeance rather than justice—which they have been known to do—there is no reason to think that providing Ricky Jackson’s lawyers with more resources wouldn’t necessarily have done very much (if anything!) about the faulty jury instructions delivered at his trial.
In fact, the Violent Crime Control and Law Enforcement Act, which President Bill Clinton signed into law in 1994, expanded the federal death penalty to cover about 60 different offenses, and has allowed the federal government to pursue capital punishment in states that abolished it years ago. As Bruce Shapiro, executive director of the Dart Center for Journalism and Trauma, wrote in the Nation last year, on the U.S. Attorney’s pursuit of the death penalty against Boston Marathon bomber Dzhokhar Tsarnaev, in Massachusetts:
State death-penalty law, for better or worse, is usually a deep reflection of local history, culture, and debate. That’s true in the states that still routinely execute prisoners—Texas, Oklahoma, and the Deep South death-penalty strongholds; those that shut their death rows decades ago, such as West Virginia and Michigan; and the nine states that have abolished capital punishment since 1980, including Massachusetts.
The federal death penalty, on the other hand, is a different story: largely a recent invention, radically expanded during a few brief years of Bill Clinton’s presidency. Ever since, the federal death penalty—both in the laws passed by Congress and the cases selectively pursued by US Attorneys—has been all about politics of the most cynically expedient variety. Most relevant to the Tsarnaev case, the federal death penalty has been a convenient vehicle for Washington Republicans and Democrats alike to profit from the same terrorism panic which after 9/11 saddled us with the Patriot Act.