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Biden Has 65 Days Left in Office. Here’s What He Can Do on Criminal Justice.

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Judicial appointments and the death penalty are among areas where a lame-duck administration can still leave a mark. Donald Trump’s second presidential term will begin on Jan. 20, bringing with it promises to dramatically reshape many aspects of the criminal justice system. The U.S. Senate — with its authority over confirming judicial nominees — will also shift from Democratic to Republican control.

The Beginning of the End of America’s Death-Penalty Experiment

San Quentin Prison's brand new execution chamber
Beginnings and endings are not always apparent when they occur. The modern death-penalty era began on July 2, 1976, when the Supreme Court decided the case of Gregg v. Georgia. But we did not actually know it had begun until Jan. 17, 1977, which was the date the State of Utah executed Gary Gilmore by firing squad.

The thing about the firing squad, though, and most all other methods of execution the States adopted—including hanging, the electric chair and the gas chamber—is that they are not the least bit subtle. When you shoot somebody, or hang him, you know you are killing him. The death penalty, however, is the sausage factory of America’s legal system: Nobody wants to know what is actually going on.

So the states eventually embraced lethal injection as the preferred method of killing condemned murderers. Now we could all pretend that the process was nothing more than a sterile implementation of proportional punishment. Sure, we were still killing somebody, but the actual act of killing the condemned looked like something you might see on the medical channel. People sometimes ask me what it is like to witness an execution, and I tell them the most powerful thing about it is walking outside the prison after it is over, into the bright light of day, and seeing that the State has just killed someone, and the citizens don’t have a clue.

We do know, however, when the end of the modern death-penalty era began: April 29, 2014. That was the day we could no longer remain willfully naive. It was the date Oklahoma executed Clayton Lockett.

Lockett had murdered a young woman named Stephanie Neiman. He shot her and buried her alive, an unusually grisly crime. He was not exactly the sort of murderer abolitionists would choose as a poster boy. But he became one anyway. As the execution was proceeding, he woke up and began straining against the leather straps that held him to the gurney. So gruesome was the scene that prison officials pulled the curtain, preventing the witnesses from seeing him writhe and gasp for air any further. Forty-three minutes later, he died.


Source: Politico Magazine, David R. Dow, July 25, 2014. Mr. Dow, who represents death-row inmates, is the Cullen professor at the University of Houston Law Center and the Rorschach visiting professor of history at Rice University. His most recent book is Things I’ve Learned from Dying.

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