Bill Clinton's Death Penalty Waffle

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Bill Clinton's Death Penalty Waffle

Magazine article

By: Alexander Nguyen

Date: July 2000

Source: Alexander Nguyen. "Bill Clinton's Death Penalty Waffle." American Prospect (July 2000).

About the Author: Alexander Nguyen is a former American Prospect writing fellow. He is a student at Yale Law School.

INTRODUCTION

Although capital punishment had been an instrument of the American justice system for almost as long as the country is old, it was not until 1930 that statis-tics on executions were collated on a nationwide basis. Between 1930 and 1967, 3,859 executions were carried out in the United States, the majority of which were for murders, although around twelve percent of this total were executed for rape and a small minority for other crimes.

However, from 1950, the average number of executions carried out each year—which had previously stood at around 150—began to decline dramatically. This trend reflected a wider societal mood shift away from the use of capital punishment. Although the overall consensus was almost always in favor of the death penalty (according to pollsters Gallup, the only exceptions came in the mid-1960s), public doubts and a number of legal challenges to America's death penalty saw judges increasingly desist from using capital punishment.

In 1967, by which time execution had become almost extinct as a form of punishment, legal challenges led to an unofficial moratorium on the death penalty as the Supreme Court struggled with its constitutional and legal ramifications. These culminated in the 1972 Supreme Court decision Furman v. Georgia, which struck down federal and state capital punishment laws permitting wide discretion in the application of capital punishment. The Supreme Court dubbed these laws "arbitrary and capricious" and said that they thus constituted a "cruel and unusual punishment"—a violation of the Eighth Amendment. The Furman ruling saw six hundred death row inmates have their sentences lifted.

More fundamentally, however, those states that still had capital punishment were forced to rewrite their statute books so that they complied with Furman v. Georgia and also subsequent rulings, in which the Supreme Court further modified instances in which the death penalty could be handed out. Under these new laws death sentences continued to be handed out, and executions resumed in 1977. Continued legal challenges meant that never more than a handful were carried out for several years. Under President Ronald Reagan (1981–1989), never more than twenty-five executions were carried out in a single year, and sometimes considerably less. This trend largely continued under President George H.W. Bush (1989–1993).

Yet the number of executions carried out did not reflect the dramatic increase in death penalties handed out. During the Reagan and Bush presidencies, the number of prisoners on death row rose fivefold, to more than 2,500. This was partly a reflection on the politicization of law and order issues. During the 1980s, as violent crime plagued American cities, the death penalty and law enforcement became the central political issue of the day. Voters demanded stiffer penalties on convicted criminals and it became increasingly popular for politicians to make capital out of a strong line on crime. Indeed what stronger line could be taken than the death penalty?

For a governor, rejecting a plea for clemency was viewed as a mark of strength; for a prospective candidate, standing against the death penalty was seen as weak and soft on crime. Never was this more apparent than in the differing fortunes of Michael Dukakis and Bill Clinton, Democratic Presidential nominees for 1988 and 1992, respectively. In 1988, Dukakis was asked on live television whether or not he would favor the death penalty for someone who had raped and murdered his wife. Dukakis stumbled in search of an answer, which was "no"; the press and public thereafter viewed him as "weak" and "liberal," and he lost the election. Four years later, Bill Clinton made certain that he took center stage when the execution of Rickey Ray Rector came up in his home state of Arkansas. Rector had been convicted of killing a police officer, but had afterwards turned the gun on himself. Instead of killing himself however, he had blown out one third of his brain, leaving him mentally retarded. Yet Clinton insisted that this was no grounds for clemency and Rector went to the electric chair.

In ensuring Rector's death, Clinton assuaged the doubts of floating voters who had hitherto seen him in similar terms to Michael Dukakis. Many believe this helped Clinton win the Presidential election. Nevertheless, throughout his eight years as President, the issue of the death penalty would be one that his critics consistently raised as an example of Clinton's so-called moral weakness.

PRIMARY SOURCE

Bill Clinton recently spared Juan Raul Garza's life—at least for a little while. On August 5, Garza—a drug trafficker convicted of ordering the murder of three people—would have become the first person executed by the federal government in almost 40 years. Though few question whether Garza is guilty, Clinton wants to give him time to request clemency under new guidelines, which are still being drafted.

Some Republicans have suggested that Clinton did this to make it easier for Al Gore to attack George W. Bush as the murderingest politician (137 served, and counting). But the real story here may be how Bill Clinton has morphed from an opponent of the death penalty to an avid supporter to a near agnostic—and the lessons it may offer for execution's opponents.

In his early days, Clinton opposed the death penalty. And while he and his wife Hillary Rodham Clinton were both teaching at the University of Arkansas Law School, she wrote an appellate brief that helped free a mentally retarded man from execution. "Clinton was against the death penalty," says Arkansas attorney Jeff Rosenzweig, who, like Clinton, grew up in Hot Springs, Arkansas. "He told me so."

As a young governor, Clinton was reluctant to facilitate the executions permitted by his state. Prosecutors often had to pressure Clinton to schedule inmates' executions, according to the Legal Times. By not doing so, he was postponing their deaths indefinitely.

Clinton eventually signed a policy that effectively set the execution dates for him. Nevertheless, he was no Robespierre: During his first term as governor, he freed 70 people from jail, 38 of whom were convicted of first-degree murder. But when one of those murdered again a few months after his release, Clinton suffered a humiliating defeat for re-election to a Republican who accused him of being soft on crime. When Clinton ran again, he publicly apologized for freeing the convicts and vowed not to do so again if re-elected. Since 1983 he has granted only seven requests.

By his second term as governor, Clinton had begun morphing into a death penalty supporter. In 1988 he expressed his support quite mildly, saying that while "many fine people" believed executions to be immoral, "that's just not my view of it." He also told The Arkansas Democrat-Gazette, "I can't say it's an inappropriate punishment for people who are multiple murderers and who are deliberately doing it and who are adjudged to be sane and know what they're doing when they're doing it."

Gradually, Clinton became a more willing executioner. Days before an execution, a lawyer from the American Civil Liberties Union approached Clinton at a tree-planting ceremony. Shaking Clinton's hand, the lawyer confronted him, saying, "You won't remember the tree, but you'll remember the people you executed." Clinton parried, "I remember the people that they killed, too."

On the national stage, something happened that would cement Clinton's support for the death penalty for years to come. Asked during the 1988 debates if Michael Dukakis would support the death penalty if his wife Kitty were raped and murdered, Dukakis stared into the camera, squinted into the lights above, and then said, "I think there are better and more effective ways to deal with violent crime." The answer ruined Dukakis. Bush relentlessly charged Dukakis with being soft on crime, and his loss changed the landscape of what Democrats could say about the death penalty.

Clinton had learned his lesson. By 1992 the presidential candidate was insisting that Democrats "should no longer feel guilty about protecting the innocent." To make his point, he flew home to Arkansas mid-campaign to watch the execution of Rickey Ray Rector, a 40-year-old black man convicted of killing a black police officer. After shooting the cop, Rector shot himself in the head and damaged his brain.

Though courts decided Rector was mentally competent to be put to death by lethal injection, evidence suggests otherwise. Rector's prison guards called him "the Chickman" because he thought the guards were throwing alligators and chickens into his cell. He would grip the bars and jump up and down like an ape. On the night of his execution, Rector saved the slice of pecan pie to be eaten before bedtime, not realizing his death would come first. He also told his attorney that he would like to vote for Clinton in the fall.

Also executed during the campaign was Steven Douglas Hill, who was convicted of shooting a state police investigator after he and an accomplice escaped from a state prison. Hill confessed to the crime, but his partner Michael Cox has insisted for years that it was he, not Hill, who pulled the trigger. In all, Arkansas executed four people on Clinton's watch.

The executions made Clinton's wish come true. Never again would anyone seriously accuse him of being soft on crime. Never again would anyone challenge his status as a New Democrat.

As president, Clinton continued to endorse the death penalty. In 1994 he pushed a crime bill through Congress that allows prosecutors to seek the federal death penalty in 60 more crimes than they could previously. Later, in his campaign against Bob Dole, Clinton ran a TV ad in which he recommended that in addition to putting more cops on the streets, "expand the death penalty. That's how we'll protect America."

In 1996, prompted by the Oklahoma City bombing, Clinton supported antiterrorism legislation that included an (ultimately unsuccessful) provision that would have curtailed the writ of habeas corpus—the power of federal courts to second-guess state courts on whether or not a fair trial had been given. The law would have allowed inmates only one federal death row appeal filed within one year of exhausting all the possible state appeals.

Quite recently, however, Clinton has changed his position. Expressing some concern that the death penalty was being distributed unequally across racial and geographic lines, his White House has asked the Department of Justice to do a statistical survey. And Clinton promised to delay Garza's execution—a move that contrasts sharply with the bloodthirsty persona he adopted almost two decades ago.

Clinton still officially supports the death penalty and so far has ignored the calls for a national moratorium on federal executions. In fact, when Senator Russell Feingold sent Clinton a letter asking him to suspend federal executions and review the death penalty, the letter went unanswered. Nevertheless, it is important to ask why—in the heat of his vice president's campaign—this poll-driven president would risk backing off the very position that secured his reputation as an electable moderate.

There are several factors giving Clinton wiggle room—and they center on the fact that recent attacks on the death penalty have been formulated not on principle, but on process.

The first empirical argument is the racial disparity. Of the 21 people on federal death row, 17 are black, Asian, or Hispanic. The second, and even more promising, argument is that the specter of putting an innocent person to death is too large. Columbia University released a study that showed that two-thirds of death penalty cases appealed between 1973 and 1995 were so flawed they had to be overturned. In Illinois—where Republican Governor George Ryan recently suspended the death penalty to investigate the fairness of the process—13 death row inmates have been freed and 12 executed since 1977. In Ryan's state, college students were able to dig up evidence exonerating inmates on death row. Since 1993 the availability of DNA testing has also cast much doubt on the certainty of guilt in convictions.

Third—rather than arguing against the death penalty as a whole—opponents have highlighted particular cases. "I don't think that much ground will be gained by sort of generically attacking the institution of the death penalty," Democratic strategist Scott Segal told The Washington Times. "Democrats will gain ground by pointing out specific instances."

Finally, backing off the death penalty has become safer since crime levels dropped so precipitously over the past decade. With the decline in crime, the support for the death penalty has fallen too. Polls place current support at 66 percent, down from 80 percent in 1994. Support falls to only 52 percent if an alternative punishment such as life imprisonment is offered as an option, according to Gallup polls.

But there's a better measure than polls: President Clinton's chameleon-like approach may give observers the best reflection of the political environment of all. And if Clinton is softening his death penalty stance, opponents can be sure that now is the moment to redouble efforts to chip away at execution's foundation—for they may be able to topple the whole institution.

SIGNIFICANCE

During Clinton's presidency, the number of executions carried out would rise dramatically. In 1993, the first year of his Presidency, thirty-eight executions were carried out nationwide, a figure which itself marked a thirty-year high. In 2000, the last year of his Presidency, this had risen to eighty-five, thirteen fewer than the previous year's record of ninety-eight executions.

While Clinton himself had little input in the majority of these executions, which were all carried out by states, according to his critics his attitude toward capital punishment typified "Clintonism"—the idea that following the polls was more important than being guided by a moral compass. When Clinton had been Governor of Arkansas in the 1970s, he had opposed the death penalty, but when law and order issues came into vogue during the next decade, he switched standpoint and ultimately became an enthusiastic backer. This culminated in his hardline stance over Rickey Ray Rector, the mentally retarded man who was executed in the run-up to the 1992 Presidential election.

Clinton's continued support of the death penalty came at a time when virtually every democracy in the world repealed capital punishment legislation. When his presidency ended in 2001, the death penalty was banned in 108 countries—including every nation besides Belarus in Europe—and the U.S., India, and Japan were the only big democracies that had not desisted in its practice. While Clinton could have argued that this was a reflection of public support for the death penalty, many countries that had banned it still had a majority of popular opinion calling for its return.

Nevertheless, public doubts about the death penalty, similar to many of those held during the 1960s, began to return during the Clinton presidency. The number of death row acquittals after new evidence revealed a conviction to be faulty doubled between 1994 and 2000. This meant that there was one release for every seven executions, causing many people to beg the question that if so many could be reprieved, how many innocents might have been sent to undeserved deaths? By 2000, a Gallup poll revealed that support for the death penalty in the U.S. had fallen to sixty-six percent—the lowest in nineteen years. This fell to just fifty-two percent when the option of life imprisonment without parole was offered.

There was also a growing surfeit of evidence that proved the effectiveness of the death penalty. Critics—including, ironically, both those in the pro- and anti-capital punishment camps—argued that executions were applied too haphazardly to put any would-be felon off.

In August 2000, during the last months of his presidency, Clinton gave a stay of execution to Juan Raul Garza, a convicted murderer and drug trafficker who was set to become the first person executed by the federal government in almost forty years. That was ostensibly so that new clemency procedures could be completed, but the move briefly raised vague hopes amongst abolitionists that Clinton was about to switch direction again and lead some sort of moratorium on the death penalty, as had happened in 1967.

No such thing happened and Clinton left the White House the following January. His successor, George W. Bush, as Governor of Texas, oversaw more executions than any other politician in decades. Within months of his inauguration, Garza was executed by lethal injection. Since then, annual executions have continued to be carried out at around the same rate as they had done during the Clinton era.