The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Democrats debate the death penalty


Democratic presidential candidates Sen. Bernie Sanders (I-Vt.) and former secretary of state Hillary Clinton spar during a Democratic presidential primary debate hosted by MSNBC at the University of New Hampshire on Feb. 4. (David Goldman/Associated Press)

There was not much discussion of federal courts during last night's Democratic debate, but there was an interesting exchange on capital punishment. (Kudos to debate moderator Rachel Maddow for asking substantive questions.) Here's the relevant portion of the MSNBC transcript:

MADDOW: Secretary Clinton, on the issue of the death penalty, here in New Hampshire, the one person who is on death row is there for killing a police officer. It's a crime that has caused anguish in this state, both among death penalty opponents and death penalty supporters.

The last time I had the chance to talk with you on this issue, on the death penalty, you said that capital punishment has a place in a very few federal cases, but you also said you would breathe a sigh of relief if the Supreme Court abolished the death penalty nationwide. Tonight, do you still support capital punishment, even if you do so reluctantly?

CLINTON: Yes, I do. And—you know, what I hope the Supreme Court will do is make it absolutely clear that any state that continues capital punishment either must meet the highest standards of evidentiary (ph) proof of effective assistance of counsel or they cannot continue it because that, to me, is the real dividing line.

I have much more confidence in the federal system, and I do reserve it for particularly heinous crimes in the federal system, like terrorism. I have strong feelings about that. I thought it was appropriate after a very thorough trial that Timothy McVeigh received the death penalty for blowing up the Federal Building in Oklahoma City, killing 168 people, including 19 children in a daycare center.

I do for very limited, particularly heinous crimes believe it is an appropriate punishment, but I deeply disagree with the way that too many states are still implementing it. If it were possible to separate the federal from the state system by the Supreme Court, that would, I think, be an appropriate outcome.

MADDOW: Senator Sanders, you have singled out the death penalty, and Senator Clinton's support for the death penalty, as an issue that makes it hard to consider as progressive in your mind…

SANDERS: … Look, I hear what the Secretary said, and I understand, but look, there are—all of us know that we have seen in recent years horrible, horrible crimes. It's hard to imagine how people can do, bomb, and kill 168 people in Oklahoma City, or do the Boston Marathon bombing, but this is what I believe, and for a couple of reasons.

Number one, too many innocent people, including minorities, African Americans, have been executed when they were not guilty. That's number one. We have to be very careful about making sure about that.

But, second of all, and maybe, in a deeper reason, of course there are barbaric acts out there. But, in a world of so much violence and killing, I just don't believe that government itself should be part of the killing. So, when somebody commits…


SANDERS: … Somebody commits any of these terrible crimes that we have seen, you lock them up, and you toss away the key. They're never going to get out. But, I just don't' want to see government be part of killing. That's all.