Obama’s death penalty review risks backlash from the states

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The generations-old debate over capital punishment has shifted to Washington, where President Obama’s Justice Department has launched a national review of the death penalty.

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Attorney General Eric Holder’s inquiry, initiated last month following a mishandled execution in Oklahoma, is still in its early stages. The effort includes a look at state death penalty protocols, though its scope and ultimate implications are not yet clear.

But by ordering up the review, Obama is raising questions about what role, if any, the federal government should have on an issue that is traditionally the province of the states.

Some congressional Republicans are warning the administration to tread lightly.

“I think the president’s got enough to do … without sticking his finger into state government,” said Sen. Chuck Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee. “They better stick to the things that, under the Constitution, are his responsibility.”

Obama, a supporter of the death penalty in rare cases, has been relatively quiet on the subject throughout his presidency. On his watch, however, the Justice Department has imposed a moratorium on federal executions, while the agency studies policies employed by the Federal Bureau of Prisons.

The death penalty returned to the fore in late April, with the execution of convicted killer Clayton Lockett, who reportedly writhed in pain after he was given the first part of a three-drug lethal cocktail and ultimately died of a heart attack.

Obama called the mishap “deeply troubling” and ordered a federal review not just of the issues at play in the Oklahoma case, but also the application of the death penalty generally.

"Racial bias. Uneven application of the death penalty. Situations in which there were individuals on death row who later on were discovered to be innocent … all of these do raise significant questions about how the death penalty is being applied," Obama said last month. “I think as a society, we have to ask ourselves some difficult and profound questions.”

Justice Department spokeswoman Ellen Canale said the agency, at the president’s direction, had expanded the pre-existing review “to include a survey of state-level protocols and related policy issues.”

The agency declined to release details about the initiative's timeline or what form its conclusions might take.

At least one group contacted by the Justice Department in the review’s initial phase urged modest federal action.

The Constitution Project, a prominent think tank whose members include former attorneys general, judges and prosecutors with differing views on the death penalty, laid out a slate of recommendations, said Christopher Durocher, the group’s government affairs counsel.

The proposed measures, stemming from a report the group issued in May, included the establishment of a an office at the Justice Department tasked with reviewing innocence claims of death row inmates.

Durocher said the group is pressing for more information about the way death penalty cases are brought into the federal justice system, given reports of racial disparity.

The group also urged the development of “federal standards and procedures” for accrediting forensic laboratories.  

Recent research has called into question the practices used in some of the 32 states that employ the death penalty.

“We would support measures that did require states to adopt certain minimum standards,” said Durocher.

States that refuse to adhere to the benchmarks could be deemed ineligible for certain federal grant money, Durocher said. 

The financial incentive, rather than an outright mandate, “maintains the respect between the state role and the federal role” in capital punishment, he said.

“We don’t want the federal government to be interfering too much with a state’s sovereign rights to administer the criminal justice system.”

However the Obama administration moves forward with its review, that balance will be vital in winning support from many in Congress.

Sen. Kelly Ayotte (R-N.H.) formerly served as the state’s attorney general and, as a prosecutor, personally argued a death penalty case involving a slain police officer.

“This is an issue that has been reserved for the states, and I would hope that the attorney general, in reviewing this, would not take any kind of executive action but would instead make his recommendations to the states and let them act accordingly,” Ayotte said.

Sen. Barbara Boxer (D-Calif.) is among many congressional Democrats who support the death penalty for those convicted of the most heinous crimes. However, she was among a handful of co-sponsors to legislation offered several years ago to impose a moratorium on all state and federal executions.

She lauded the Obama administration for delving into the thorny topic.

“I feel that we’re having all kinds of problems in moving forward with the death penalty, and we’ve seen it in state after state, Boxer said. “I think a review of how the death penalty is carried out is definitely appropriate because of the fact that cruel and unusual punishment is not allowed in the Constitution.”

Opponents of the death penalty say the federal action is more evidence that the tide is turning in their favor.

Use of the death penalty in the United States has fallen dramatically since peaking in 1999 with 98 executions after steadily rising since the mid-1970s. Last year, states put 39 people to death.

Public support has also fallen. While most Americans — roughly 60 percent — still favor the death penalty for people convicted of murder, that number has decreased steadily since 1994, when 80 percent of the country approved of capital punishment, according to a Gallup poll released last year.

The anti-death-penalty movement won another victory last week, when the U.S. Supreme Court said Florida’s rigid IQ test to determine who is fit for the death penalty violated the Constitution.

Now, all eyes are on the Obama administration’s review.

“The government should identify ways to make sure states are adhering to what’s best for human rights,” said Thenjiwe McHarris, senior campaigner for the Death Penalty Abolition Program at Amnesty International.

While the group has not been in discussions with the Justice Department, McHarris called the review an important milestone for the president. While Obama’s direct authority on capital punishment is limited, coming out against the death penalty would send a powerful message, she said.

She cited statistics showing that 144 death row convicts have been exonerated and lamented that the United States remains among the globe’s top enforcers of the death penalty, along with China, Iran, Iraq and Saudi Arabia.

“The world is moving away from the death penalty,” McHarris said. “Now its time for the U.S. to do the same.”