By The Editorial Board
Capital punishment is not a front-burner political issue this year. In fact, the Democratic Party dropped the subject from its 2024 platform, eight years after becoming the first major party to formally call for abolishing the death penalty. But in 2020, President Joe Biden’s campaign platform included a pledge to “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.” Once elected, he became the country’s first sitting president openly opposed to capital punishment.
It would be an appropriate and humane finale to his presidency for Biden to fulfill that pledge and try to eliminate the death penalty for federal crimes. Such an effort would also remind the nation that this practice is immoral, unconstitutional and useless as a deterrent to crime.
For more than two decades now, most barometers of how Americans view capital punishment — the number of new death sentences, the number of executions and the level of public support — have tracked a steady decline. There were 85 executions in 2000 but only 24 last year and 13 so far this year, all carried out in only seven states: Alabama, Florida, Georgia, Missouri, Oklahoma, Texas and Utah.
While a majority of Americans, about 55% over the past several years, remain in favor of the death penalty for convicted murderers, half no longer believe it is used fairly. The Gallup Crime Survey, which has been testing opinions on this subject of fairness since 2000, found in last October’s sampling that for the first time, more Americans believed the death penalty was applied unfairly (50%) than fairly (47%).
This editorial board has long argued that the death penalty should be outlawed, as it is in Western Europe and many other parts of the world. Studies have consistently shown, for decades, that the ultimate penalty is applied arbitrarily, and disproportionately to Black people and people with mental problems. A death sentence condemns prisoners to many years of waiting, often in solitary confinement, before they are killed, and executions have often gone awry, arguably violating the Eighth Amendment ban on “cruel and unusual punishment.”
But the death penalty is still on the books at the federal level as well as in 27 states. Biden’s Justice Department ordered a moratorium on federal executions in 2021, putting a pause on the practice after the Trump administration carried out 13 federal executions in its last six months. The moratorium is not a ban; it was intended only to study the protocols used for the practice. So even after the moratorium on carrying out federal executions was put in place, federal prosecutors decided to seek the death penalty for the perpetrator of the racist attack at a Buffalo, New York, supermarket in 2022.
Some states have imposed moratoriums on executions because the predominant method, lethal injection, has been botched so many times. Others are searching for new modes of killing. The most notorious of the 13 executions so far this year, that of Kenneth Smith on Jan. 25 in Alabama, was a result of the state’s recent experiment with asphyxiation by nitrogen gas.
When Smith was first scheduled to die, in 2022, the prison’s execution team was unable to insert the IV for a lethal injection, adding to the lengthy list of bungled executions by that method. Problems in administering lethal injections and the difficulty in procuring the necessary chemicals had prompted officials in some states to explore a new method of execution. In Alabama, Smith was chosen to test it.
Whether Smith was guilty of committing a terrible crime is not in question; he was sentenced to death for the brutal murder of Elizabeth Sennett in 1988. The question is whether death by asphyxiation is what Americans in Alabama and elsewhere should accept as justice and humanity in the 21st century.
Nitrogen hypoxia was promoted by Alabama as a more humane way to put a person to death, and it initially looked as if it would be widely embraced. Oklahoma, Mississippi and Louisiana have authorized the new method, Ohio is preparing to join them, and officials in Nebraska are considering it.
But then, all the other methods used in the United States over the last three centuries — gallows, firing squad, electric chair, gas chamber and lethal injection, which is currently the most common method — were also promoted as humane. One witness to Smith’s death reported that he writhed and heaved in apparent agony for several minutes before he died.
Americans who believe that these punishments have no place in a modern system of criminal justice can urge lawmakers in the states where execution is still legal to ban it altogether. In the several states where it is still regularly in use, voters can demand stricter limits, such as a requirement that a prisoner cannot be subject to the punishment a second time, after a botched attempt, as Smith was. Alabama was the last state that allowed judges to impose the death penalty even when a jury had ruled otherwise. That was the case for Smith, who was sentenced to life in prison by the jury in his second trial, a decision that was overruled by a judge.
There are executive actions Biden could take in the absence of federal or state legislation to abolish the death penalty, including directing the Justice Department not to pursue the death penalty in pending and future cases and commuting the death sentences of those currently on federal death row. He could also order the demolition of the federal execution chamber in Terre Haute, Indiana, as those opposed to the death penalty have urged him to do. And by promoting new federal legislation, he could restart an important conversation in American society about ending the death penalty. Even if its chances of passage were unlikely, the discussion around it and in the wider public would have value.
Until this year, the American justice system seemed firmly on course away from the death penalty. Biden was right to identify capital punishment as a moral affront, and he should help relegate this practice to history.
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