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Obama Pondering Death Penalty Role     11/27 06:39

   WASHINGTON (AP) -- Even as President Barack Obama tries to make a hard case 
for overhauling sentences, rehabilitating prisoners and confronting racial bias 
in policing, he has been less clear about the death penalty.

   Obama has hinted that his support for capital punishment is eroding, but he 
has refused to discuss what he might call for.

   A Justice Department review has dragged on for 18 months with little mention 
or momentum. The president recently repeated he is "deeply concerned" about the 
death penalty's implementation, though he also acknowledges the issue has not 
been a top priority.

   "I have not traditionally been opposed to the death penalty in theory, but 
in practice it's deeply troubling," Obama told the Marshall Project, a 
nonprofit journalism group, citing racial bias, wrongful convictions and 
questions about "gruesome and clumsy" executions. His delay in proposing 
solutions, he said, was because "I got a whole lot of other things to do as 

   Obama said he plans to weigh in, and considers the issue part of his larger, 
legacy-minded push for an overhaul of the criminal justice system. White House 
officials say the president is looking for an appropriate response and wading 
through the legal ramifications.

   Capital prosecutions are down across the United States. A shortage of lethal 
injection drugs has meant de facto freezes in several states and at the federal 
level. Spurred in part by encouragement from Supreme Court justices Stephen 
Breyer and Ruth Bader Ginsburg, advocates are debating whether the time is 
right to push the court to take a fresh look at whether the death penalty is 

   A solid majority --- 61 percent --- of the public supports the death penalty 
in murder cases, but that share has crept downward while opposition has inched 
up, according to a Gallup poll last month.

   Obama isn't alone in struggling with the issue.

   "We have a lot of evidence now that the death penalty has been too 
frequently applied and, very unfortunately, often times in a discriminatory 
way," Democratic presidential candidate Hillary Rodham Clinton said. "So I 
think we have to take a hard look at it." She also said she does "not favor 
abolishing" it in all cases.

   For Clinton's Democratic presidential rival, Vermont Sen. Bernie Sanders, 
the issue is settled. "I just don't think the state itself, whether it's the 
state government or federal government, should be in the business of killing 
people," he said.

   On the Republican side, candidate Jeb Bush says he's swayed by his Catholic 
faith and is "conflicted."

   "We should reform it," he told NBC's "Meet the Press." ''If it's to be used 
as a deterrent, it has to be reformed. It can't take 25 years. That does no one 
any good. Neither the victims nor the state is solving this problem with that 
kind of tangled judicial process."

   In September, Pope Francis stood before Congress and urged that the death 
penalty be abolished. Obama specifically noted the comment when talking about 
the speech to aides. White House spokesman Josh Earnest said Obama was 
"influenced" by what the pope said.

   Such hints have death penalty opponents likening Obama's deliberations to 
his gradual shift toward supporting gay marriage.

   Charles Ogletree, a Harvard law professor who taught the president, said: 
"Though not definitive, the idea that the president's views are evolving gives 
me hope that he --- like an increasing number of prosecutors, jurors, judges, 
governors and state legislators --- recognizes that the death penalty in 
America is too broken to fix."

   White House officials caution that any presidential statement disputing the 
effectiveness or constitutionality of the death penalty would have legal 

   For example, would the administration then commute the sentences of the 62 
people currently on federal death row to life in prison?

   Every lawyer representing a death row inmate would make that case in an 
appeal, said Douglas Berman, criminal law professor at Ohio State University's 
Moritz College of Law. Among those inmates: Dzhokhar Tsarnaev, convicted of 
murder in the Boston Marathon bombing.

   "There's not been a president who in the modern use of the federal death 
penalty has indicated a disaffinity for it," Berman said. "And if this one were 
to say, 'I don't think it's something we ought to be doing,' that's a policy 
statement and personal statement, but it is also one that indisputably would be 
put in the legal papers and would require courts to grapple with its 

   If Obama went further, perhaps formalizing the federal freeze, it could 
affect other major terrorism cases. The Justice Department has yet to decide 
whether to seek the death penalty in the prosecution of the man charged in the 
attack on the U.S. consulate in Benghazi, Libya, for example.

   A moratorium might serve as a model for the states --- where most capital 
prosecutions occur --- and would make more of a mark than expressions of 
concern, advocates argue.

   "On an issue like this, it's important to make judgments on what people 
actually do," said Robert Dunham, executive director of the Death Penalty 
Information Center, which opposes the death penalty. "We have seen in many 
states governors who say they are against the death penalty, nonetheless 
denying clemency in controversial cases. ... Whether people say they're 
personally supportive of the death penalty or not doesn't really matter. It's 
what they do that matters."


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