Questions on Death Penalty Spotlight Clinton’s Checkered Past on Capital Punishment

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March 13, 2016; The Hill

As the battle for the Democratic nomination rages, Sunday night’s town hall in upcoming primary state Ohio gave Bernie Sanders and Hillary Clinton another chance to differentiate themselves for the swing voters.

Sunday night brought to the forefront the issue of the death penalty, which generally Sanders opposes and Clinton supports. However, Clinton was asked to specify the capacity in which she supports capital punishment by an exoneree and former-death row Ohio inmate, Ricky Jackson. In anticipation of Tuesday’s next round of primaries, that moment at the town hall gives voters the opportunity to delve into the candidate’s past positions on the death penalty and what it may mean if she steps into the oval office.

Jackson was convicted of murder at the age of 18 and spent the next 39 years in prison awaiting his execution, the longest-served sentence for any wrongful conviction exoneree. He was released more than a year ago with the help of the Ohio Innocence Project. Jackson stood up and asked Clinton:

Senator, I spent some of those years on death row and I came perilously close to my own execution. In light of what I just shared with you and in light of the fact that there are documented cases of innocent people who have been executed in our country, I would like to know, how can you still take your stance on the death penalty, in light of what you know right now?

In true pragmatic form, Clinton’s levelheaded response is unlikely to surprise those who have been following her position on the death penalty in recent years. Eschewing the states, Clinton said that it’s become apparent that states simply cannot conduct executions honoring the defendant’s rights and ensuring the wrong person is not imprisoned. Rather, she said, the capacity to use capital punishment should only be held by the federal government, and the death penalty should only be used in very specific cases where mass murder has been committed.

“I have said I would breathe a sigh of relief if either the Supreme Court or the states themselves began to eliminate the death penalty,” said Clinton. “But a very limited use of it in cases where there has been horrific mass killings. That’s really the exception that I still am struggling with. And that would only be in the federal system.”

A year ago, the Marshall Project and Politico both wrote pieces on the evolution of Clinton’s position on the death penalty and criminal reform in general. Before Clinton affirmed her current position against abolishing the death penalty in October of last year, she noted her “unenthusiastic support” for capital punishment when she ran for the Senate in 2000. What may explain her “unenthusiastic support” could be Clinton’s previous involvement in the 1976 case of Henry Giles, a mentally handicapped convicted murderer who she helped avoid the death penalty as a young attorney. At the time, Bill was running for attorney general of Arkansas, which persuaded her to keep her name off the amicus brief. According to the Marshall Project, during Bill’s time as governor, for which he oversaw four executions, including the execution of horrendously brain-damaged inmate Ricky Ray Rector, Hillary allegedly agonized over Bill’s position on the death penalty. However, publically she remained silent on her views.

Clinton’s changing positions on the death penalty fit well with her general pragmatic disposition; her public views generally conformed to the accepted views at the time, including the ebb and flow of her husband’s views.

In many ways, Clinton’s position on capital punishment is intertwined with her husband’s political career and beliefs. Bill painted a target on his back in 1979 after he commuted the prison sentence of mentally ill convicted murderer James Surridge, who, upon his release, committed another murder. While previously Bill had embraced more liberal policies in criminal reform, in the years that followed 1979 and in his years in the oval office, Bill took a harder stance on crime—and so did Hillary. In the early 1990s, Bill set 70 execution dates for 26 death row inmates while Hillary lobbied for the Violent Crime Control and Law Enforcement Act, which expanded the number offenses that could one could be sentenced to death for to 60. President Clinton signed it because it coincided with his position as being tough on crime. Twenty years later, we can look back and see how the mass incarceration policies of the 1990s were largely ineffective at decreasing crime, but they were the accepted views of the time.

Therefore, in these dark times of domestic and international terrorist attacks, liberals should expect her to follow the status quo and support execution for Boston marathon bomber Dzhokhar Tsarnaev, who was sentenced to death by a Massachusetts jury last year. Clinton also isn’t wrong when she remarks on the historic failings of the criminal justice system in the states. Arguably, if the death penalty were reserved for the most extreme cases, the federal government, which hasn’t executed an inmate since 2003, would be less likely to bungle executions. Only recently have executions by states garnered regular attention and scrutiny, based in part on the efforts of local publications. The level of scrutiny on the federal government when conducting executions is likely to be the same or even more elevated than it is now at the state level.

However, Clinton’s shift contrasts sharply with her opponent’s position on capital punishment; Sanders has actively worked against the death penalty throughout his career. Given the record number of exonerations the last few years and states’ decreasing use of the death penalty, Clinton’s softened position on the death penalty will likely appeal to some on the fence about the issue themselves. But the staunch opponents of the death penalty are unlikely to find their candidate in Hillary Clinton.—Shafaq Hasan