Times change. Minds change.
Two decades ago, I cautioned abolitionists about taking up the cause of America’s most heinous criminals: mass murderers, serial killers, domestic terrorists, and the like. So why did I feel a deep sense of disappointment when I heard the news that President Joe Biden was commuting the death sentences of thirty-seven people on federal death row but not of Dylann Roof, Dzhokhar Tsarnaev, and Robert Bowers?
Roof committed racially motivated mass murder; Tsarnaev is one of the infamous Boston Marathon bombers, and Bowers, “whose vicious antisemitism led him to shoot his way into a place of worship and target people for practicing their faith,” killed eleven people at the Tree of Life Synagogue in Pittsburgh, Pennsylvania.
My disappointment was not motivated by sympathy for the three of them. If anyone deserves the death penalty, surely they would qualify.
No, my disappointment is rooted in the belief that by omitting Roof, Tsarnaev, and Bowers from his mass clemency, the President missed an opportunity to move the needle in the ongoing struggle to end capital punishment in the United States. Joe Biden, who will never have to face the electorate again, could have used the bully pulpit to explain why even Roof, Tsarnaev, and Bowers should not be put to death.
His explanation would have galvanized a national conversation about whether this country should renounce the death penalty once and for all. By leaving those terrorists and mass murderers on death row, we lost the chance to have that conversation.
This country is ready for it. Abolitionists have made great strides in weaning the United States from its attachment to capital punishment and have seeded the ground for the next steps.
That is why I regard Biden’s refusal to commute the sentences of Roof, Tsarnaev, and Bowers as a lost opportunity. But as I indicated above, it is only recently that I have come to think this way.
In January 2001, I published an op-ed in the Los Angeles Times entitled “Let Timothy McVeigh Go, Let Him Go Quietly.” McVeigh, who blew up a building in Oklahoma City, Oklahoma, and killed 168 people in what the FBI called “the worst act of homegrown terrorism in the nation’s history, had been convicted of mass murder and sentenced to die.”
When I wrote my piece, McVeigh wanted to end all legal appeals and receive an execution date. I asked:
Should those who oppose the death penalty take up his case as they did that of Gary Gilmore, who in 1977 also gave up efforts to prevent himself from becoming the first person executed after the reinstatement of the death penalty by the U.S. Supreme Court? Should abolitionists now protest, as they did in the face of Gilmore’s expressed desire to die, that no one should be allowed to enlist the government’s aid in what amounts to suicide?
Should they ask Americans to sympathize with McVeigh’s plight by reminding us that, despite the horror of his deed, he is a human being with the capacity to love and be loved, to hope and fear, to cry and perhaps even to change?
I answered these questions with an unequivocal “no.”
“If McVeigh wishes to have his death sentence carried out, no one should stand in his way, including those most vehemently opposed to capital punishment.” My reasons for saying this were mostly strategic.
I was afraid that publicly siding with McVeigh would derail the progress that abolitionists were then making.
Opponents of capital punishment should, I urged, “continue to focus attention on the inadequacy of lawyers in capital cases, the fairness of limiting rights of appeal and habeas corpus for those condemned to die, and the very real threat of executing the innocent.” Ultimately, I said, “This is just not the time to save McVeigh….”
So why would 2024 have been the time to save Roof, Tsarnaev, and Bowers from facing execution?
A lot has changed since 2001. Those changes offer grounds for believing that the United States is on the road to abolishing the death penalty and that abolitionists can now do what I did not think they could do 23 years ago.
Signs of progress are plentiful
In 2001, more than 155 death sentences were handed down across the country; in 2024, that number is 26. According to the Death Penalty Information Center, “2024 is the tenth consecutive year with fewer than 50 people sentenced to death, further evidence of juries’ reluctance to impose death sentences.”
In 2001, there were 66 executions. This year, that number is 25.
In addition, as the DPIC reports, “Public support for the death penalty remains at a five-decade low (53%) and Gallup’s recent polling reveals that more than half of young U.S. adults ages 18 through 43 now oppose the death penalty. Fewer people found the death penalty morally acceptable this year (55%) than last year (60%).”
While these developments are not irreversible, they suggest that the anti-death penalty movement has sufficient “capital” to take on the hardest cases without losing momentum. And if that were not enough to offer hope, recall that in the cases of Parkland School shooter Nikolas Cruz and Sayfullo Saipov, who carried out an ISIS-inspired terrorist attack in New York, juries chose life in prison without parole instead of the death penalty.
In 2001, what I have called “the new abolitionism” was just starting to take root. Death penalty opponents were beginning to get traction with the public by arguing “against the death penalty not by claiming that it is immoral or cruel but instead by pointing out that it has not been, and cannot be, administered in a manner that is compatible with our legal system’s fundamental commitments to fair and equal treatment.”
By focusing on what some have called our broken death penalty system, e.g., false convictions, racial discrimination in sentences, and botched executions, opponents of capital punishment were attaining what I labeled “a position of political respectability while allowing them to change the subject from the legitimacy of execution to the imperatives of due process.”
Today, those arguments are woven into the belief systems of millions of Americans. As the DPIC noted last September, “The Gallup Crime Survey has asked about the fairness of death penalty application in the United States since 2000. For the first time, the October 2023 survey reports that more Americans believe the death penalty is applied unfairly (50%) than fairly (47%).”
“Between 2000 and 2015,” as DPIC explains, Gallup found, “51%-61% of Americans said they thought capital punishment was applied fairly in the U.S., but this number has been dropping since 2016. This year’s number of 47% represents a historic low in the history of Gallup’s polling.”
Considering this success, abolitionists now have the political leeway to argue that people like Roof., Tsarnaev, and Bowers are entitled to be treated with dignity and be allowed to live. And, if that were not enough, we know that the death penalty does not deter mass murderers and terrorists like them.
In fact, research has shown that “since the U.S. Supreme Court upheld the constitutionality of the death penalty in 1976, 80% of…mass shootings (ten or more people killed) have taken place in death penalty states or on federal property subject to the federal death penalty.”
So, in the end, Biden could have spared the lives of Roof, Tsarnaev, and Bowers without endangering either the progress abolitionists have made or the lives of people in this country. The cause of ending the death penalty would have been better off had he done so.
