The problem with Hillary Clinton's answer on the death penalty

Criminal justice didn’t get a lot of air time during the first one-on-one debate between Hillary Clinton and Bernie Sanders, ahead of Tuesday’s New Hampshire primary. Hopefully you didn’t take a bathroom break and miss the entire exchange.

The candidates were asked if they supported the death penalty. Clinton presented her stance first:

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

Sanders took the opportunity to stake his claim to the left of Clinton by declaring his opposition to the death penalty. “Too many innocent people, including minorities, African-Americans have been executed when they were not guilty,” Sanders noted. “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 the government itself should be part of the killing.”

Sanders’ stance sits on two fairly easy to understand principles: (1) the state is killing too many innocent people and minorities (a 2013 study in the Proceedings of the National Academy of Sciences suggests that 4.1% of criminal defendants sentenced to death in the U.S. are innocent), and (2) the state shouldn’t be involved in killing prisoners.

Clinton’s death penalty position was a little more problematic, if the goal of the evening, as it frequently seemed, was to out-progressive the other candidate. For instance, the example Clinton gave of an appropriate use of the death penalty for a particularly heinous crime was Oklahoma City bomber Timothy McVeigh, who was convicted and ultimately executed for blowing up a federal building, killing 168 people. It’s not a case that elicits much sympathy, especially when you take into account that the bombing also killed 19 children.

The issue with the McVeigh example is that it takes a particularly egregious actor and makes him a poster child for a policy that even Clinton has acknowledged has much further-reaching implications beyond punishing a bad man for doing bad things. The death penalty is much bigger than McVeigh or any other Brand Name Killer. It exists in a system that’s historically flawed at equitably fingering and killing people. Clinton acknowledged as much last year, noting that “we have a lot of evidence now that the death penalty has been too frequently applied, and too often in a discriminatory way.” But despite recognizing the issues with the death penalty’s inequitable application, she still believes in it.

Furthermore, Clinton’s caveat, that the death penalty should be reserved “for very limited particularly heinous crimes” may sound like a reasonable one to many ears, but it doesn’t define the parameters of a particularly heinous crime. Are we talking only about terrorism? If so, what is terrorism? Is a church shooting terrorism? How many deaths equals particularly heinous?

Yet even if she presented a clear definition, the prosecution of these very egregious crimes would still presumably take place in the same courts that apply the death penalty too frequently and in a discriminatory way.

Clinton’s death penalty position will probably leave a sour taste in the mouths of many progressives, but perhaps the larger question, in the context of the Clinton-Sanders battle over who is more progressive, is how their respective death penalty positions will play out over time among the electorate. There’s really no argument over whose death penalty position is more progressive, but it’s possible that, as the race moves on from New Hampshire, Democratic voters in less progressive states, where people respond to displays of strength, may connect with some of Clinton’s more centrist positions, like her stance on capital punishment. Which is probably why she’ll end up keeping a few stakes in the middle, because if she does end up beating Sanders, her path to White House will probably not be aided by having spent several months arguing that she’s the Progressive-in-Chief on every issue.

Miriti Murungi is a Senior Digital Producer/Social Media Editor for Fusion. He is possibly responsible for the nonsensical ramblings at @NutmegRadio. Also dabbles in yacht rock and used to wear a tie. *tips hat*