Well the election is over and Barack Obama has won by a large margin. Equally important, the Democratic Party has gained control of Congress despite the conservative Republican Party attempting to label Obama and the democrats as “liberals” and “socialists”, like that’s a bad thing..
The question now is what will this mean to those of us on death row? Maybe it won’t mean anything as when it comes down to it the death penalty is about politics and especially in the southern states, where the death penalty is particularly popular, even those in the Democratic Party fanatically support capital punishment.
When asked about the death penalty months ago President Obama made it clear that he does support the death penalty, although he qualified that response with his belief that it should be ‘fairly” administered. As a state senator from Illinois, President Obama is familiar with the circumstances that compelled then Governor Ryan of Illinois to grant pardons and order the release of 5 condemned men he believed were innocent, while commuting the death sentences of all other prisoners then on death row in Illinois. So it stands to reason that Obama is personally familiar with how fundamentally flawed the death penalty is.
But what can he really do about it? Not even the president of the United States has the power to order the States to abolish the death penalty. President Obama cannot even compel the States to be “fair” in the administration of the death penalty as our Constitution gives the States the power to make their own laws.
However, if so inclined President Obama can directly make a significant difference. To start with, now that he will have a majority support of the United States Senate, he can (and presumably will) begin nominating judges to the Federal Courts that do not come in with their own pro-death conservative agenda.
President Obama is perhaps the most qualified president during our lifetime when it comes to picking qualified judicial candidates as Obama has himself been a Professor of Constitutional Law prior to running for political office. It can be safely assumed that Obama will choose judicial candidates who have similar experience in constitutional law.
Most importantly of course will be the probability that at least a few of the present US Supreme Court Justices will be replaced within the next four years. We can say what we want about President Bush, but he wasn’t stupid. The ultra conservative Justices he put on the Supreme Court (Chief Justice Roberts and Justice Alito) will be around for a long time to come. With equally conservative, pro death penalty Justice Scalia and Justice Clarence Thomas, we know that at least 4 of the 9 Supreme Court Justices would see hell freeze over before they even considered voting to declare the death penalty unconstitutional. But even with these 4 votes, they do not have a majority. This is why the election of President Obama is so important. In coming years he will put his own pick on the Supreme Court, giving us hope that maybe, just maybe, the future Court will be more receptive to abolishing the death penalty all together.
But what I would like to think is possible now is something no one else has mentioned …having the Democratic controlled Congress repeal the 1996 “Anti Terrorist and Effective Death penalty Act”. As those of us familiar with the death penalty know only too well, this “AEDPA” has brought about more executions than any other act of legislation.
This law was rushed through Congress shortly after the 1996 Oklahoma City bombing that killed over 300 men, women and children. The alleged mastermind was quickly labeled a “terrorist”, years before the infamous 9/11, was brought to trial and convicted, then executed under the Federal death penalty, largely thanks to the expedited review process brought about and made possible by the 1996 AEDRA law.
The problem is that this Timothy McVeigh inspired restriction on Federal “habeas” review has significantly limited review of those capital convictions and death sentences imposed in state courts, making it all but virtually impossible to pursue meaningful appellate review in the Federal courts.
It has become increasingly common for state prisoners to find that they will have virtually no Federal review of their convictions and death sentences because their state appointed lawyers failed to file the Federal appeal on time. Inevidently this use of politically inspired procedural bars will result in the execution of innocent people.
The AEDRA is for all practical purposes a restriction of the “inalienable” right to pursue habeas review a death by default law.
Thus this is my biggest hope, that as a former Professor of Constitutional Law and a man of moral conscience, newly elected President Obama will now take a personal interest in compelling the now Democratically controlled Congress to repeal the 1996 AEDPA and restore some semblance of fundamental fairness back into the Federal Courts, and equally restore a basic safeguard against executing the innocent.