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How Obama Disappointed on the Death Penalty

Two commutations this week was less than many had hoped for.

On his way out of office this week, President Barack Obama took the rare step of commuting two federal death sentences — the first time a president has spared someone from execution since 2001. Abelardo Ortiz, a Colombian national convicted in 2000 of a drug trafficking murder, and Dwight Loving, convicted in military court in 1989 of killing two cab drivers in Texas, will now serve life sentences.

It was a victory for defense attorneys and anti-death penalty activists, but there was also disappointment in the air. While Obama could grant more clemency petitions in the hours before President-elect Donald Trump takes the oath of office on Friday, two commutations fell short of what some opponents had hoped they might see from a president who not that long ago called capital punishment “deeply troubling.”

The White House did not respond to requests for comment on why Obama bestowed mercy on these particular men. Ortiz’s attorney and others said the problems in his case weren’t much different than those that bedevil many of the other 62 people still on federal death row — impaired mental capability, substandard trial lawyers, and geographic and racial disparities.

At one time, Obama seemed to agree. After high-profile botched executions in Oklahoma and Ohio in 2014, he instructed then-Attorney General Eric Holder to begin a broad assessment of capital punishment. A year later, Obama told The Marshall Project he found the death penalty “deeply troubling,” leading some to speculate he planned to ramp up clemency.

But there is no indication that the Justice Department review will be finished before Obama leaves office, and the department has continued to pursue death sentences, most famously against Boston Marathon bomber Dzhokhar Tsarnaev and Charleston shooter Dylann Roof. (The federal government has carried out only three civilian executions since 1963, and no military executions since 1961. There are five people on military death row.)

Ortiz’s attorney, Amy Donnella, said she was grateful for her client’s commutation but hoped the president would extend relief to others. “A series of lucky coincidences related to Ortiz helped him get relief,” Donnella said. “Luck shouldn’t play a role.”

Ortiz was one of four men convicted of killing Julian Colón in Kansas City in 1998. All were tied to a network of Colombian cocaine traffickers. The ringleader, Edwin Hinestroza, believed that Colón had stolen $240,000 in drug profits and enlisted Ortiz and two others to recover the money. (The whole tale was reported by The Pitch in 2001.)

Either Ortiz or another co-defendant shot at and missed Colón’s 17 year-old nephew, but neither was in the room when Colón was shot in the head and killed. Ortiz told police that he did not expect that anyone would be killed and had no direct involvement in Colón’s death. Two of the four men, including Hinestroza, were sentenced to life in prison; another was sentenced to death but died of a heart attack on death row in 2013.

After the Supreme Court ruled in 2002 that the intellectually disabled cannot be executed, Ortiz’s appellate lawyers sparred with federal prosecutors over whether their client suffered from such a disability. A doctor hired by his lawyers assessed his IQ as below 60. He was unable to tie his shoes until age 10, according to his lawyers, and once in prison could not obtain a GED despite hundreds of hours of education. A prosecution-hired psychologist concluded that he was not disabled, arguing that some of his failures on the psychological tests could be explained by his having the “[profile] of an illiterate person, a person who comes from a low-socio economic background, a person unacculturated.”

Ortiz’s attorneys also argued that his trial defenders did not sufficiently investigate his childhood, which included exposure to brutal violence and racism — Ortiz is of African descent — in his hometown of Buenaventura, Colombia. The Colombian government, which abolished the death penalty in 1910, has supported Ortiz’s efforts. Mexico and El Salvador have also aided the defense of nationals facing the death penalty in the U.S.

Donnella, Ortiz’s attorney, said these factors all appeared to contribute to the Justice Department decision to review his claims, and last year, they hired a new psychologist, Daniel Martel, who found that Ortiz did in fact suffer from severe “intellectual and adaptive deficits.” Lawyers from the Department of Justice announced in January 2017 that Ortiz was entitled to have his sentence reduced.

Donnella and other public defenders say others on federal death row have similar issues in their cases. She pointed to Bruce Webster, sentenced to death in 1994, who has also made claims of intellectual disability, and Daniel Lee, who like Ortiz, received the death penalty while a more culpable co-defendant did not.

The victim left behind a widow. Savanah Colón, who was pregnant at the time that her husband was killed, said Wednesday that she was not angry about the commutation. “I realized a long time ago that there is nothing that can bring him back,” she said. Still, she supported the death penalty for Ortiz. “I think Obama wouldn’t do this if it was one of his daughters that was murdered.”