The top law enforcement officer in the land, Attorney General Eric Holder, yesterday called for the nation to put a halt to executions until after the Supreme Court finished a review of Oklahoma’s procedure for lethal injections.
But Holder went beyond Oklahoma to express his overall opposition to capital punishment because of the horrific scenario that innocent people could be killed.
“Our system of justice is the best in the world. It is comprised of men and women who do the best they can, get it right more often than not, substantially more right than wrong. But there’s always the possibility that mistakes will be made,” he said in remarks at the National Press Club. “It is one thing to put somebody in jail for an extended period of time, have some new test that you can do and determine that person was, in fact, innocent. There is no ability to correct a mistake where somebody has, in fact, been executed. And that is from my perspective the ultimate nightmare.”
Surely Holder is aware of the frequency with which innocent men are incarcerated. It seems as if every week another Black man is released when new evidence arises or a key witness recants, illustrating the inherent racial biases that exist in the system.
A report last month by the National Registry of Exonerations, through the University of Michigan Law School, found that innocent men were released from prison for crimes they did not commit in record numbers last year.
The report detailed 125 known exonerations of innocent defendants, an increase of 34 from 2013. While the report did not break down the exonerations by race, the Innocence Project—perhaps the leading organization that works to free innocent prisoners, primarily through DNA evidence—reports that 67 percent of the exonerated men it had a hand in getting released were Black.
Holder said he disagrees with Justice Antonin Scalia, who has said the U.S. has never executed an innocent person.
“It’s inevitable,” he said during a luncheon at the National Press Club.
And based on the numbers, that innocent man being executed is most likely to be Black.
Oklahoma’s execution procedure has been under scrutiny ever since the botched execution of inmate Clayton Lockett, a Black man who writhed and clenched his teeth for several minutes after being administered a lethal three-drug combination. It took Lockett 43 minutes to die—the scene was so ugly that officials closed the curtain to block the view from the spectators gallery.
After the botched execution, Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma, said, “In Oklahoma’s haste to conduct a science experiment on two men behind a veil of secrecy, our state has disgraced itself before the nation and world.”
Calling the botched execution “deeply troubling,” President Obama ordered a federal review of the country’s use of the death penalty, including state protocols for administering capital punishment. Holder said yesterday that review is still underway and likely won’t be completed before he steps down from the post.
States have had to come up with new and creative ways to kill people after the traditional pharmaceutical companies started refusing to supply them with lethal drugs to be used for executions.
Last month, the Supreme Court agreed to hear an appeal the from death row inmates in Oklahoma who have challenged the state’s procedures for lethal injections.
“I think fundamental questions about the death penalty need to be asked,” Holder said. “And among them, the Supreme Court’s determination as to whether or not lethal injection is consistent with our Constitution is one that ought to occur. From my perspective, I think a moratorium until the Supreme Court made that determination would be appropriate.”
A devastating report released earlier this month by the Alabama-based Equal Justice Initiative linked the nation’s use of the death penalty to the lynchings of Black people that raged across the South in the early 20th century. Though the nation’s criminal justice apparatus has tried to excise the racial roots from the application of the death penalty, the EJI report made them plain.
“As early as the 1920s, lynchings were disfavored because of the ‘bad press’ they garnered,” the report states. “Southern legislatures shifted to capital punishment so that legal and ostensibly unbiased court proceedings could serve the same purpose as vigilante violence: satisfying the lust for revenge.”
Through the litigation of the NAACP Legal Defense Fund, which made the claim that the death penalty was racially biased and unconstitutional, the Supreme Court in 1972 struck down Georgia’s death penalty statute as too closely resembling “self-help, vigilante justice and lynch law” and said that “if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.”
The South reacted to the court decision with dismay. Four years later the Supreme Court upheld Georgia’s new death penalty statute and reinstated the American death penalty—”capitulating to the claim that legal executions were needed to prevent vigilante violence,” the EJI report says.
Forty-two percent of those currently on death row in America are Black, while 34 percent of those executed since 1976 have been Black—though Black people are just 13 percent of the nation’s population.
“Capital trials today remain proceedings with little racial diversity; the accused is often the only person of color in the courtroom and illegal racial discrimination in jury selection is widespread, especially in the South and in capital cases,” the EJI report says. “In Houston County, Alabama, prosecutors have excluded 80 percent of qualified African Americans from juries in death penalty cases.”
Proving how much capital punishment is “a direct descendant of lynching,” the EJI said more than eight in 10 American lynchings between 1889 and 1918 occurred in the South, and more than eight in 10 of the nearly 1,400 legal executions carried out in this country since 1976 have been in the South.
Last year Holder told the Marshall Project, “I think that the issue is made real when you look at some of the things that have happened in the states over the last year or so, where you had these botched executions, where you had an inability to get the appropriate drug. We’ve had doctors unwilling to participate in the process. I think this is pushing this country toward some really fundamental questions about—even though, you know, people still support the death penalty by 55 percent, or whatever the number is—some fundamental questions about continued use of the death penalty.”