In his final days in office, President Obama brought the number of federal prison sentences he commuted to 1,715, the most acts of such clemency by a president in modern history. While recipients such as former Army intelligence analyst Chelsea Manning, who had been serving a 35-year sentence for leaking government secrets, drew the spotlight, Obama also last week converted two convicted murderers’ death sentences to life in prison, acts of mercy that were long overdue — and that the president should have granted to all 62 people on federal death row.
The vast majority of the nation’s 2,900 pending death sentences have been handed down by juries in state courts, in a system that has been shown time and again to be inconsistent, untrustworthy and disproportionately stacked against people of color. But federal criminal and military codes also allow capital punishment for a long menu of crimes, almost all of which involve murder committed under federal jurisdiction — from blowing up an airplane to assassinating a federal official to killing in connection with a civil rights violation.
Sadly, the federal death penalty system is subject to many of the same shortcomings as the state systems. As lawyers for Donald Fell, facing a federal murder charge in Vermont, wrote last year, “the notion that the problem of wrongful capital convictions and sentences is confined to the state systems and that the federal capital punishment system is somehow immune from such problems is just plain wrong.”
In a subsequent ruling on Fell’s argument, U.S. District Court Judge Geoffrey Crawford detailed the too-familiar argument: that chance has more to do with who gets executed than justice does. “It remains very hard for any of us to tolerate a legal regime which orders that one person should live and another should die based upon a selection process which is demonstrably flawed at the level of jury decision-making,” Crawford wrote. But he added that he was powerless to rule that the system is unconstitutional since “institutional authority to change this body of law is reserved to the Supreme Court,” whose decisions have supported the constitutionality of capital punishment.
Despite pro-death-penalty victories last fall in ballot initiatives in California, Oklahoma and Nebraska, support for capital punishment nationwide is fading. Voters in November also ousted district attorneys in five death-penalty-heavy counties in Texas, Alabama and Florida. And last week in Georgia, the state that has executed more people in the last year than any other, a group called Conservatives Concerned About the Death Penalty launched an effort to get the state’s voters to reconsider a system that is more expensive than life in prison, and in which the innocent have too often been convicted.
The two condemned killers whose death sentences Obama commuted (without explanation) to life in prison were convicted in two separate systems. Abelardo Arboleda Ortiz was sentenced in federal court despite being intellectually disabled (which his lawyer didn’t explore at trial), and his sentence was harsher than the prison terms meted out to two of his fellow defendants — even though Ortiz wasn’t in the room when the drug-related murder was committed in Kansas City. The other commutation went to Dwight J. Loving, an Army private at Fort Hood, who was sentenced to death by a military court after being convicted of killing two cab drivers in 1988. His lawyers have argued that the military death penalty system is also marred by racism — nine of the 11 death sentences handed down since 1984 went to minorities. All of the victims were white. And Loving’s jury was all male, with only one nonwhite member.
After botched executions in Ohio and Oklahoma in 2014, Obama ordered a Justice Department review of capital punishment, a report that wasn’t completed by the end of his presidency Friday. We hope the incoming attorney general sees that the report is finished and released. But we also hope that the shifting national attitude toward capital punishment continues and that evolving standards of decency will compel the Supreme Court to finally reach the only just conclusion: that the death penalty, at both the state and federal levels, is an abomination, immoral at its core, and irredeemably flawed as an instrument of justice.