Holder a Lonely Holdout as Death Row Enters Death Throes

In seeking the death penalty for the accused Boston marathon bomber, Eric Holder violates his personal opposition, Boston public opinion and growing nationwide resistance to execution as criminal punishment.

Following the Boston Marathon bombing, a September Boston Globe survey showed that the majority of Boston citizens, including immediate victims, opposed the death penalty for the man accused, should he be convicted. The poll is in line with general sentiment across the country: Since 2008, one state per year has officially abandoned the practice; death sentences have declined by half; and public support for the death penalty has declined. US Attorney General Eric Holder himself is on the record as personally opposed to the death penalty because he has seen that it is often unfairly applied.

Yet Holder plans to seek the death penalty in the case of Dzhokhar Tsarnaev, the man accused of carrying out the Boston bombings along with his brother.

In recent years, support for execution has been eroded by outrage – about errors (143 Death Row inmates found to have been wrongfully convicted); about cost (a capital trial expense is eight times higher than a trial seeking life in prison); about racism (those who kill whites are exponentially more likely to get the death sentence); and about classism (those who cannot afford skilled defense are exponentially more likely to get the death sentence). The Justice Department’s decision to pursue the death penalty for Tsarnaev is discordant with the overwhelming direction of the country at this point in history.

Massachusetts, as a state, has denounced execution: Holder would have to move the sentencing to another state because Massachusetts has no death penalty.

Only seven states have executions scheduled for this year, and systemically troublesome questions have already been raised in four.

No one – including doctors, prison officials and even drug companies – wants to actually perform executions. Most states are backing away from the practice.

To be sure, some persist in using the punishment. Missouri grabbed headlines twice since January 1: first, when prison staff, following orders, executed a man before word had come on his final appeal; and second, when a federal judge issued an injunction to stop the state from purchasing a drug from a rogue (not overseen by the USDA) pharmaceutical compounding company. Missouri is in this fix because no legitimate company – American or European – will sell a drug to be used to kill.

Texas executed a Mexican citizen, despite a plea by our secretary of state and calls from Mexico for extradition.

Florida killed a 62-year-old man who had been on death row for 38 years.

In Ohio, a man strapped on a gurney took 25 minutes to die, sometimes writhing in a way that shocked witnesses, including his son and daughter, seated just beyond a pane of glass. No one argued the man’s innocence, but his children are accusing the state of violating their father’s constitutional protection against cruel and unusual treatment.

One screaming irony is that lethal injection became the preferred practice when citizens, put off by horrors of earlier methods, imagined it humane. It is, as we see, intrinsically flawed. Because no legitimate professional will play, procuring the drugs has become a clandestine activity for which corrections staff are responsible, and amateurs are left to insert the needle, infuse the IV, and tend to the inmate’s physical well-being. Indeed, to ease the task for prison personnel, we’ve created protocols (curtains, duplicate IV tubes, etc.) not only to conceal their identity, but to shield them from knowing whether they personally caused the death.

Avid proponents of capital punishment, upset by the present commotion, argue a simple solution: Dust off proven implements of the past – the rope, the electric chair or the rifle. Yet those regressive strategies are far from widely embraced. The solution is to move forward, not back. Most states are.

Effective February 11, Washington State instituted a moratorium on the death penalty.

New Hampshire is poised to be even more absolute. On February 12, the key bipartisan committee in its House voted overwhelmingly (14-3) to move forward a bill to abolish executions. It is likely that before the end of the year, New Hampshire will join the roll of 18 other states that already ban the practice in law.

Louisiana’s withdrawal is more subtle. Withdrawing from the frenzy, it is joining the 25 other states in which the penalty remains technically available, but is never or rarely practiced. On February 7, Louisiana postponed the execution of the one man scheduled to be killed this year, pending review of its drug protocols. For those watching Louisiana, this was not a surprise. Once home to one of the country’s most active execution chambers, it has neither executed – nor even handed down a single death sentence – in three years.

Handing Tsarnaev the death sentence will only extend the life of a system that needs to be let go. Holder should resist the temptation to think he can make capital punishment seem fair in a case that seems simple. He cannot.

What a tattered rag our social fabric becomes in the thrall of this debate. The death penalty is already in its final days; it is time to take it off life support. Holder can accelerate the process. We should demand that he do everything in his power to do so, and let death row die its timely death.