This story was first published by the Brennan Center for Justice.
The only surprising part of the Trump administration’s choice to restart federal executions is that it took the president this long to make it. As a matter of pure politics, Donald Trump would probably like nothing more than to have a national debate over the next year about what sort of justice ought to be meted out to convicted murderers. Such a dialogue during the primary season will likely rile his base, track his “American carnage” motif, and distract reporters away from coverage of the administration’s malfeasance and the president’s own legal troubles.
The Trump administration quietly until now has been increasing the rate of federal capital cases, a policy entirely consistent both with Trump’s own odious views of the death penalty and the views of both of the attorneys general who have served in this administration. Like Trump, Jeff Sessions pushed to begin killing federal death row inmates again last year and famously suggested that capital punishment was applied too restrictively; that drug dealers, too, should be executed.
William Barr, the current attorney general, now simply is implementing what Sessions started. The feds say they will not fight in court, as so many capital states have, over the efficacy of a three-drug lethal injection cocktail or other deadly brew. Instead, following the lead of capital punishment states like Missouri, the Bureau of Prisons will try to kill condemned prisoners using a single drug: pentobarbital. And so the feds announced Thursday that five federal inmates at the death chamber in Terre Haute, Indiana, already have been issued their death warrants.
It doesn’t matter to Trump, or to Barr, that violent crime rates are down in America and at generational lows in many jurisdictions. It doesn’t matter that, as more states abolish the death penalty, executions are down across the country and that the imposition of death sentences in murder cases also is waning for good and practical reasons. It does not matter to this administration that conservative opposition to capital punishment has grown significantly over the past decade or so. Or that the American people, slowly but surely, are turning away from it as well, with less than half of Americans saying that the death penalty is applied fairly.
And it surely does not matter, to Trump or to Barr, that the Justice Department under Attorney General Eric Holder once undertook a study of the federal death penalty at the request of President Obama because of concerns they both had about the fairness and accuracy of capital punishment. Federal death sentences obviously haven’t just become more fair or accurate in the past few years. They’ve just become politically expedient to this administration. (Incidentally, what a disappointment Obama and Holder turned out to be when it came to capital punishment. The internal DOJ study Holder was working on never was completed, or at least never was made public, and Obama in the end failed to use his broad clemency powers to make a dent on federal death row).
Virtually all of the problems inherent in capital regimes at the state level are evident at the federal level. There are racial and geographical disparities, for example, all chronicled by the experts at the Federal Capital Habeas Project. Three states — Virginia, Texas, and Missouri — account for nearly half of all current federal capital sentences. And just three federal appeals courts — the 4th, 5th, and 8th Circuits — have upheld two-thirds of all federal death penalty convictions and sentences.
The “worst of the worst” is how the feds justify their decision to kill again after a 16-year hiatus. Even the Justice Department press release announcing the identities of the federal prisoners chosen to be killed first reads in its dripping scorn for the condemned like a prosecutor’s closing argument or one of Justice Clarence Thomas’ opinions in a capital case. The truth is that Clinton-era restrictions on appellate review mean there are fewer ways to identify prosecutorial misconduct or ineffective assistance of counsel in these cases.
The Justice Department’s decision to gear up the “machinery of death,” to use the late Supreme Court Justice Harry Blackmun’s famous phrase, surely will generate a new wave of federal capital litigation. Already there are questions, for example, about whether the proposed new injection protocol will follow the precepts of administrative law, and where the feds are going to get the supply of the drug. But there is no reason to think this Supreme Court, as presently constituted, will stop the machine in its tracks.
So we will have a cold season ahead full of death penalty appeals and protests by opponents of capital punishment. We will have angry video and early-morning tweets from a president eager to ridicule abolitionists and tar them with the crimes of those whose lives they seek to save. And we’ll have a new round of hand-wringing from the justices in Washington as they fight anew over the use of deadly drugs. All over a cynical choice made by a president who has been preening lately about his reputation for criminal justice reform.