Five high-powered, influential individuals have joined the call for abolishing the death penalty and a sixth may soon be joining their ranks, according to insiders in the Obama administration. The list of new capital punishment opponents includes two Supreme Court justices, a former U.S. president, a governor and the man generally credited with creating the drug cocktail used over the past 40 years to administer lethal injections.

Meanwhile, President Barack Obama is “close” to publicly opposing the death penalty, according to a long-time associate.

“He’s not there yet, but he’s close, and needs some help,” Harvard University law professor Charles J. Ogletree, Jr. told the Washington Post in a July 16, 2015 article. Ogletree, who has long opposed the death penalty, taught the president and First Lady Michelle Obama when both were students at Harvard.

“Even if he doesn’t change his mind in the next year and a half, I think the public’s point of view is going to influence him,” said Ogletree, who predicted the president will eventually throw his support to anti-death penalty advocates. “As a citizen, he can have an enormous amount of influence.”

Obama has in the past supported the death penalty for particularly horrific crimes, but he has also raised questions about the fairness of its application based on race and the number of death row prisoners who have eventually been exonerated.

“In the application of the death penalty in this country, we have seen significant problems – racial bias, uneven application of the death penalty,” Obama commented following a gruesome Oklahoma execution in July 2014, during which prisoner Clayton Lockett writhed and moaned on the gurney before suffering a fatal heart attack 43 minutes after the controversial drug midazolam was administered. [See: PLN, Oct. 2015, p.44].

The death penalty was thrust into the national spotlight when European manufacturers of the drugs used in lethal injections began boycotting U.S. corrections departments on the moral grounds that the drugs were being exported to the U.S. to execute people. Since supplies have dwindled in the wake of the boycott, states have shopped around for substitutes, in some cases purchasing the drugs illegally on the international market or turning to poorly-regulated compounding pharmacies. [See: PLN, March 2014, p.46; June 2011, p.1].

On June 29, 2015, a sharply-divided U.S. Supreme Court upheld the use of the drug midazolam to conduct executions, even though it has been at the center of controversy for potentially causing prisoners to suffer excruciating pain before they die. Ruling 5-4 in a lawsuit filed on behalf of three prisoners on Oklahoma’s death row, the Court said their legal challenge failed because the prisoners did not identify any “known and available alternative method” that would lower the risk of pain.

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, penned the dissenting opinion, in which he proposed that the death penalty as it is currently applied violates the Eighth Amendment’s prohibition against cruel and unusual punishment. He also cited the growing number of exonerations of death row prisoners.

“Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court’s view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily,” Justice Breyer wrote. “The circumstances and the evidence of the death penalty’s application have changed radically since then.”

“[C]onvincing evidence ... that innocent people have been executed” and evidence that the death penalty “has been wrongly imposed” in the executions of more than 100 innocent men and women demonstrate the cruelty of capital punishment, he added. See: Glossip v. Gross, 135 S.Ct. 2726 (2015).

“This is not what people expected when they wrote the cases upholding the death penalty more than forty years ago, and therefore I think it’s time to revisit the issue,” Justice Breyer said in a subsequent interview.

Attorney Dale Baich, one of the attorneys representing the Oklahoma prisoners, took aim at the drug used by that state’s prison system.

“Today’s ruling, which allows departments of corrections to use midazolam in lethal injection executions, contradicts the scientific and medical understanding of the drug’s properties,” Baich told the New York Times. “Because the Court declined to require that states follow scientific guidelines in determining their lethal injection procedures, states will be allowed to conduct additional human experimentation when they carry out executions by lethal injection.”

Indeed, the man generally considered the father of the lethal injection process has criticized capital punishment on the grounds that it is applied arbitrarily in cases in which the guilt of the condemned prisoner cannot be guaranteed.

“I am ambivalent about the death penalty,” said Dr. Jay Chapman, the pathologist who invented the lethal injection protocol. “[T]here have been so many incidents of prosecutorial misconduct, or DNA testing that has proved a prisoner’s innocence. It’s problematic.”

“There are some criminals who have no redeeming features and who will never be rehabilitated – in those cases I would support the death penalty,” Chapman told The Guardian. “But I’ve also seen the misconduct that can occur, and the problem is: how do you sort out one from the other?”

Chapman criticized the use of midazolam, saying it “would not be my drug of choice” for executions because it must be taken in relatively large doses before it reaches lethal levels.

Former U.S. President Jimmy Carter first called for a national moratorium on capital punishment during remarks at an American Bar Association (ABA) symposium at the Carter Center in Atlanta on November 12, 2013.

“We should abolish the death penalty here and throughout the world,” Carter said, noting the death penalty has long been contaminated with racial and economic bias. “The only consistency today is that the people who are executed are almost always poor, from a racial minority, or mentally deficient,” he stated. “It’s almost inconceivable in these modern days to imagine that a rich white man would be executed if he murdered a black person.”

Carter suggested that public discomfort with capital punishment could make a difference in the way the death penalty is carried out. “The Supreme Court is heavily influenced by public opinion,” he observed. “I don’t think there’s any doubt that the Supreme Court changes its mind on a number of issues, particularly social issues, because of public opinion.”

Thirty-one states still have capital punishment, but anti-death penalty sentiment continues to grow across the nation. The most recent state to ban executions was Nebraska, in May 2015. In Delaware, state lawmakers considered hotly-debated legislation to repeal the death penalty during the 2015 session – a proposal that gained the support of the state’s governor.

“It doesn’t make us safer,” Governor Jack Markell said of capital punishment. “Should the repeal bill come to my desk, I would sign it.” Believing the death penalty to be an “instrument of imperfect justice,” Markell said the number of death row exonerations and revelations of flawed testimony in certain cases helped shift his opinion.

“This is not an easy issue. My thinking has changed and I just wanted to give it very careful consideration,” he added. The bill to ban capital punishment in Delaware failed to clear the House Judiciary Committee on a 6-5 vote in May 2015.

In Virginia, former state Attorney General Mark Earley also announced his opposition to the death penalty. After overseeing 36 executions during his tenure in office from 1998 to 2001, Earley said he has now “come to the conclusion that the death penalty is based on a false utopian premise. That false premise is that we have had, do have, and will have 100% accuracy in death penalty convictions and executions.”

“If you believe that the government always ‘gets it right,’ never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty,” Earley wrote in an article for the University of Richmond Law Review. “I can no longer support the imposition of a penalty so final in nature, yet so fraught with failures.”

Even the state of Texas – notorious for executing more people than any other state – has seen erosion in support for capital punishment.

“Texas should join the 19 U.S. states where the death penalty has been abolished,” wrote former prosecutor Tim Cole in an op-ed in the Fort Worth Star-Telegram. Cole, who served four terms as District Attorney in Archer, Clay and Montague counties, said growing doubt over the death penalty’s fairness is influencing juries to shy away from capital punishment.

“I believe it is happening because the problems with how the death penalty is assessed have become evident to everyone, including jurors,” he declared. “If you can show me a perfect system, I’ll give you the death penalty. But you can’t. You can’t show me a system that’s so perfect that you could show me we’d never execute an innocent person.”

Cole wrote that a decline in death sentences is “proving as a state that we can live without the death penalty.” A Dallas Morning News editorial noted that of the three capital cases tried in Texas during 2015, all three resulted in life sentences. Continuing a downward trend, there were 28 executions nationwide last year – the lowest number since 1991. Meanwhile, there have been 150 exonerations of death row prisoners over the past 38 years.

In October 2015, in an interview with The Marshall Project, an independent news agency that focuses on criminal justice issues, President Obama said the death penalty was “deeply troubling” in practice. Which is about the closest any sitting president has come to condemning capital punishment.

Sources: www.clatl.com; www.ajc.com; www.daltondailycitizen.com; www.nationaljournal.com; www.usatoday.com; www.deathpenaltyinfo.org; www.washingtonpost.com; www.cnn.com; www.delawareonline.com; www.theguardian.com; M. Earley, “A Pink Cadillac, An IQ of 63, and a fourteen-year-old from South Carolina: Why I Can No Longer Support the Death Penalty,” 49 University of Richmond Law Review 811 (March 2015); Roanoke Times; The Star-Telegram; Dallas Morning News

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