On Wednesday, Hillary Clinton made a far-reaching appeal for reform of the nation’s criminal justice system, reflecting a bipartisan shift against the law-and-order politics of the past three decades — and reversing her own shift to the right after starting her career as a crusader against capital punishment.

In a speech at New York’s Columbia University, Clinton called for an end to the “era of mass incarceration” and said it was “time to change our approach.”


Clinton said nothing, however, about her own profound evolution on criminal justice — especially on the death penalty, the ultimate expression of the state’s power over Americans’ lives.

As a young lawyer, Clinton helped save a mentally handicapped black man from the electric chair. This is not a fact she has promoted in her years as a tough-on-crime U.S. senator or amid her quest to become the Democratic presidential candidate in 2016.

Her role lies buried in an appeal to save Henry Giles, a convicted murderer, back in 1976, when Clinton headed the legal aid clinic at the University of Arkansas. A brief filed by the Cummins Prison Project, a law school effort to defend prisoners at one of Arkansas’s most notorious prisons, played an important role in winning leniency for Giles because of his mental impairment, court documents show.

Hillary Clinton’s involvement in the case illustrates a profound shift in her views over time on an issue she last discussed publicly in her 2000 race for the U.S. Senate. Her comments then — that the death penalty had her “unenthusiastic support” — riled the most liberal wing of the Democratic Party. The death penalty poses a complicated issue for Clinton, whose husband, Bill Clinton, carried out executions as Arkansas governor and loudly defended capital punishment as he sought to establish himself as a law-and-order Democrat during his 1992 White House bid.

But times are changing, and politicians from both parties are calling for a reexamination of a criminal justice system rife with racial disparities, including the question of which inmates live and die. With Baltimore rioting and nationwide protests around a police shooting in Ferguson, Mo., presidential candidates are likely to be pulled into the debate. The Supreme Court on Wednesday hears yet another challenge to the death penalty’s constitutionality, this one centered on a drug used by some states in lethal injections.

Interviews released this week for a book project by New York University’s Brennan Center for Justice, in which Clinton and other presidential contenders share their views on criminal justice solutions, show just how different the politics of these issues are today. “Marking a clear political shift on crime and punishment in America, these sentiments are a far cry from politicians racing to be the most punitive in the 1980s and 1990s,” the introduction reads.

Even Bill Clinton, who as president talked tough on crime and pushed hard to increase the police presence in U.S. cities, acknowledges that reforms are needed. “[W]e have overshot the mark,” he writes in the book’s foreword.

In her essay for the book, Hillary Clinton reflects on her Arkansas years advocating for “prison inmates and poor families. I saw how our criminal justice system can be stacked against those who have the least power and are the most vulnerable.” She writes about the need to “restore balance” by reducing prison populations and building trust between police and communities.

But she says nothing about capital punishment or how her views evolved, from a liberal young lawyer whose clinic argued that the death penalty was unconstitutional to the supportive wife of a governor and president charged with enforcing the law.

And nowhere has Clinton reflected on the case of Giles, still serving time in an Arkansas prison thanks in no small part to the work of her team.

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Henry Giles went to trial in early 1975, in Forrest City, Arkansas, charged with murdering shoe store clerk Evelyn Drummond. In only a few weeks, Giles, a 20-year-old mentally impaired black man, was sentenced to death by an all-white jury.

The news hardly warranted a shrug back in Arkansas, where capital punishment was in force and a defendant’s mental handicaps were not fully taken into account in death penalty sentencing. The U.S. Supreme Court did not rule execution of the mentally disabled unconstitutional until 2002 (and it didn’t set a national standard for what constitutes a mental disability until 2014).

But one of the first lawyers to flag the constitutional question in Arkansas was Hillary Rodham, an idealistic Yankee lawyer passionate about social justice. In 1976, she and other lawyers at the university law clinic filed a 64-page amicus brief on behalf of Giles, openly repudiating some aspects of the state’s capital punishment law. Ultimately, the argument set a new precedent in Arkansas, relevant until a few years ago, that jury forms needed to reflect the facts of the case for a sentence to stand.

Rodham had followed her boyfriend, Bill Clinton, to Arkansas, bringing impeccable liberal credentials. A Wellesley graduate, she’d written her college thesis about controversial community organizer Saul Alinsky, interned at a Berkeley, Ca. law firm, and tried to topple Richard Nixon as an aide to the House Judiciary Committee.

Both she and Bill took teaching jobs at the University of Arkansas Law School in Fayetteville in the fall of 1974, and they married a year later. Bill used the school as a political launching pad. Hillary signed on to direct the school’s legal aid clinic and run two prison projects.

One of her missions was to provide better legal representation for prisoners inside the Cummins Prison Farm in Lincoln County, Arkansas, considered the worst prison in the state.

Nancy Pietrafesa, a college friend of Hillary’s who later went to Arkansas to work for Bill Clinton during his first term as governor, said she and Hillary firmly agreed that “the so-called justice system in that state was a moral outrage.”

Young lawyers assigned to Rodham’s prison project on Fridays traveled to Cummins with project staff attorney Patrick O’Rourke, staying overnight in a guest house where they were waited on by convicted felons. O’Rourke said that Hillary was eager to assign more law students, including women, to the project to provide them with more clinical experience. “It kind of freaked out the guards having women inside the prison after dark,” O’Rourke said, but Rodham didn’t mind. She had visited the prison herself with Robert Newcomb, the project’s former staff attorney, once before.

One prisoner they encountered was death row inmate Giles, whose attorneys were mustering arguments to try to save him from the electric chair.

Giles’s attorneys appealed in June 1975, disputing the fairness of the all-white jury, white prosecutor, and white judge. They also questioned the validity of the confession obtained by police.

“Your Honor, Henry Giles does not know the degree of the charges against him,” the attorneys wrote in their motion, adding, “[Giles] does not know he has been on trial.” A chief concern was the fact that the jury had not listed any mitigating circumstances, including Giles’s youth and mental deficiencies, on forms they were required to fill out in rendering a verdict.

In February 1976, Rodham and O’Rourke submitted a motion with the Arkansas Supreme Court for the Cummins Prison Project to file an amicus brief on Giles’ behalf.

It was finally submitted on May 4, 1976, signed on behalf of the Cummins Prison Project, along with the names of O’Rourke and Elizabeth Osenbaugh, another law school professor, now deceased, who worked with Clinton.

Why Rodham chose to leave her name off of the brief is unclear, but Bill Clinton’s political career was then at a critical juncture. Jeff Rosenzweig, a longtime friend of Bill’s who has worked as a criminal defense attorney in Arkansas for decades, pointed out that Bill was about to coast to election as the state’s attorney general, unopposed. He noted that “it would be a problem” for the spouse of the attorney general to be on the opposite side of a case against the state.

O’Rourke said Rodham often advised lawyers rather than drafting briefs herself. But in an interview, O’Rourke pointed out that the brief was written on “on behalf of the prison project” that Rodham led, and he said she was highly invested in the work. “When she took on a project, she took it on with the goal of doing the very best she could,” he said.

Arkansas, like other states, was still interpreting a vaguely worded 1972 U.S. Supreme Court decision that ruled all state death penalty procedures unconstitutional, but did not say that capital punishment itself was unconstitutional. Instead, it left open a window for states to craft new death penalty laws in accordance with the justices’ opinions and to see whether they would hold up in court.

The Cummins Prison Project’s brief emphasized both that capital punishment was applied unequally and that it is inherently flawed in the abstract. “The most frequently used justification for capital punishment is that it deters potential felons from committing certain acts,” the brief said. “There is no evidence that the death penalty is a more effective deterrent than lesser punishment.”

The brief raised the idea that the death penalty is an “attention getting device” that might provoke violence by a mentally disturbed person. All of these arguments undermining the foundations of capital punishment were part of the prevailing progressive zeitgeist at the time.

Two months after the brief was submitted, the U.S. Supreme Court weighed in again in Gregg v. Georgia, ruling that capital punishment could be constitutional when applied with sufficient standards. The decision effectively invalidated some of the broader anti-death penalty arguments in the prison project’s brief.

But other parts of the brief specific to the Giles case were unaffected. One of these claimed that the jury’s failure to cite Giles’ mental impairment on the jury forms listing mitigating circumstances should have invalidated the verdict.

When the Arkansas Supreme Court finally opined in April 1977, it cited Rodham, along with O’Rourke and Osenbaugh, as attorneys of record for the Cummins Prison Project, and made multiple mentions of the brief’s arguments.

The court agreed that Giles’ mental impairment should have been considered a mitigating circumstance. It reduced his sentence from death to life imprisonment without the possibility of parole.

The commutation was approved later that month by then Attorney General Bill Clinton.

Giles remains in an Arkansas state prison not far from Memphis.

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Hillary Clinton’s work on behalf of Cummins prisoners ended when she moved with Bill to Little Rock after his election as attorney general. She joined the white-shoe Rose Law Firm, specializing in patent infringement and intellectual property. Her pro bono work dealt mostly with child and family issues, including with Arkansas Advocates for Children and Families, which she helped found.

Her profile became more subdued. During Bill’s first term as governor, he supported liberal criminal justice positions and commuted 70 sentences, including 40 life sentences. Friends and acquaintances who knew the Clintons at that time say they both opposed capitol punishment. Former Clinton aide Betsey Wright told The New Yorker in 1994 that Hillary opposed the death penalty, until Bill started overseeing them as governor.

But Bill Clinton’s record became an issue when he unsuccessfully sought a second gubernatorial term in 1980, a setback in his career.

In 1979, he had commuted the sentence of a mentally ill, convicted murderer, James Surridge, 73. Less than a year after his release, Surridge committed another murder. The case later came to be known as Bill Clinton’s “own Willie Horton,” as he prepped for a presidential bid.

Returning to the governor’s office in 1982, Bill shifted his policies. He commuted only seven sentences in his next ten years in office. In 1990, Bill oversaw his first two executions, both of them white men.

By 1992, in the heat of his first presidential run, he had set around 70 execution dates for 26 death row inmates. And he spoke zealously of tough sentencing. “It was a terrible thing, something I have to live with,” Clinton said in 1989 of the Surridge decision. In primary debates, Clinton remarked, “If you get someone who’s really bad, I think capital punishment’s appropriate.”

The Clintons’ full approval of the death penalty was underscored on Jan. 24, 1992, less than a month before the New Hampshire primary that made Clinton the “comeback kid.” Clinton had flown back to Little Rock to oversee the execution of Ricky Ray Rector, a man who had lobotomized himself in an attempted suicide. On that night, as Rector’s executioners struggled to insert the needle for lethal injection, Newsday reported that a clemency request came as Bill and Hillary were preparing for an interview about his alleged affair with Gennifer Flowers. The execution went through, and Hillary has never spoken publicly about Bill’s decision. (The late Christopher Hitchens ripped the decision in a 1999 book, calling it “the first of many times that Clinton would deliberately opt for death as a means of distraction from sex.”)

During Clinton’s presidency, neither Bill nor Hillary wavered. In 1994 Hillary lobbied Congress for passage of the Violent Crime Control and Law Enforcement Act, which created new death penalty-eligible federal crimes. Her husband signed it.

Hillary then expressed “unenthusiastic support” for capital punishment during her 2000 New York Senate race. The issue did not surface during her 2008 presidential run.

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Wednesday’s Supreme Court arguments deal with whether midazolam, a benzodiazepine sedative commonly used in lethal injections, sufficiently prevents the inmate from experiencing cruel and unusual punishment. The court had ruled in 2008 that death sentences must be carried out relatively painlessly.

Within the last year, states like Wyoming, Tennessee Oklahoma, and Utah have scrambled to pass bills reinstating the electric chair, the firing squad, or gas chambers as back-ups in case legal lethal injection chemicals become unavailable.

Public support for the death penalty has dropped to 56 percent, according to the Pew Research Center, with a majority of blacks and Democrats opposing.

“The political landscape surrounding the death penalty has changed,” said Robert Dunham, Executive Director of the Death Penalty Information Center. “Opposition to the death penalty is no longer a political liability.” Many African-Americans and progressives, including Rep. William Lacy Clay Jr. (D-Mo.), the son of a founder of the Congressional Black Caucus member Rep. Bill Clay Sr. (D-Mo.), told POLITICO he hopes Clinton addresses the issue and believes death penalty opposition “should be a part of [the Democratic] platform.”

Presidential hopefuls are likely to be pushed to take a position on the death penalty’s implementation, since studies have shown vast racial disparities in sentencing. While no leading Republican contender has spoken against capital punishment, Bernie Sanders, Martin O’Malley, and even liberal-dream-candidate Elizabeth Warren are opposed.

Hillary Clinton has not uttered a word about it publicly in more than a decade. Asked to explain her current position on the death penalty, her campaign declined to comment.

Gabriel Debenedetti contributed reporting.