Analysis & Comment

Opinion | Abolish the Federal Death Penalty

A hush fell over the federal death chamber in Terre Haute, Ind., on March 18, 2003, after the government injected lethal chemicals into the veins of Louis Jones Jr. There would be no other federal execution for the next 17 years.

It should have been the end of them. The country was changing. Vigorous public advocacy, exonerations of dozens of death row inmates and a break in the nation’s fever over crime had precipitously reduced executions throughout the country, after a peak during the height of the 1990s drug war.

Prosecutors became less likely to seek death sentences, and juries became less likely to hand them down. The number of Americans who found the death penalty acceptable slid lower and lower. American drug manufacturers didn’t want to produce the lethal chemicals, American labs didn’t want to test them, and international pharmaceutical companies largely refused to sell them — that’s why the federal government had to stop killing people.

Then former President Donald Trump showed the power one man can have over life and death even in a democracy. From the first months of the Trump administration, his Justice Department overcame corporate objections, plowed through legal challenges and, last July, embarked on a killing spree that led to the deaths of 13 of the 17 people the federal government has executed in the last 60 years.

President Biden has said he abhors the death penalty. He could urge his Justice Department to abandon pursuit of executions, withdraw pending notices of intent to seek capital sentences in federal cases, decline to defend government appeals in capital proceedings, and commute all 49 remaining federal death sentences to life in prison.

And he should. But as long as the death penalty remains an option for future presidents, future killing sprees could — and almost certainly will — recur. Mr. Biden’s campaign promised to urge Congress to abolish the federal death penalty. Now we must demand that he keep that promise; the country is ready. Let the vicious spectacle that Mr. Trump and his Attorney General William Barr unleashed be the death knell for the federal death penalty.

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The barbarity of the death penalty was supposed to have been extinguished nearly a half-century ago. Reviewing a prosecutorial system that justices called arbitrary and capricious, the Supreme Court held in Furman v. Georgia in 1972 that the death penalty was unconstitutional, violating the Eighth Amendment’s bar against cruel and unusual punishment. Eager to resume killing, states studiously concocted laws to bypass these procedural objections. In 1976 they got their way: Beginning with the case of Gregg v. Georgia, the court began approving revised death penalty statutes, permitting executions to proceed.

Yet while states moved forward with executions, the federal death penalty wasn’t reinstated until 1988 — and the government carried out no executions until 2001, when Oklahoma City bomber Timothy McVeigh was put to death. Two more executions followed: Juan Raul Garza, convicted of three drug-related murders, in 2001 and Mr. Jones, convicted of murder, rape and kidnapping, in 2003.

In February 2006 a judge granted a motion by lawyers for six federal death row inmates to postpone their deaths until an investigation could determine whether the government’s method of execution, lethal injection, was excessively cruel. Federal executions stopped as the investigation stretched on. Then in 2011, the federal government announced it could no longer get the drugs required because manufacturers did not want to face public outcry.

It turned out that the pause in executions would last only until the government had the will to end it. A few months into Mr. Trump’s term, his Justice Department began taking steps to cloak the identities of pharmaceutical manufacturers and testing laboratories. With their brand names hidden — and their profits protected — those companies set about compounding and testing pentobarbital, a drug commonly used to euthanize animals. By summer of 2020, the government was ready to deploy its new stock of poison.

Lawyers for the condemned scrambled to enter last-minute appeals on behalf of their clients.

But the Supreme Court, now dominated by Trump appointees and other right-wing justices, began denying appeals and vacating stays — sometimes in the middle of the night, always without comment. They cast aside questions about inmates’ intellectual competence, their degree of involvement in the underlying crime, their youth at the time of the crime and their horrific childhood abuse.

“We felt like we’d dodged this bullet for so long,” Paul Enzinna, one of the lawyers who won the stay in 2006, told me, “but now here it comes.”

Daniel Lewis Lee, a white supremacist convicted of the 1996 slaying of a gun dealer and his family during a robbery, was the first to die — despite the vociferous objections of his victims’ relatives. The court vacated Mr. Lee’s stay of execution around 2 a.m. on July 14; Mr. Lee was declared dead by 8:07 a.m.

Wesley Purkey, who kidnapped, raped, and murdered a 16-year-old girl in 1998, was the next to die. A Federal District Court had stayed his execution because there was significant evidence that he had advanced Alzheimer’s disease. But the Supreme Court scuttled the injunction without explanation and cleared the way for killing him, at 2:45 a.m. on July 16. Mr. Purkey was dead by 8:19 a.m.

On it went — midnight reversals, executions carried out beneath a shroud of unfinished litigation, the questions about the cruelty of lethal injections left unresolved.

“Rather than permit an orderly resolution of these suits,” Justice Sonia Sotomayor wrote in a dissent issued before the execution of the last to die, Dustin Higgs, “the government consistently refused to postpone executions and sought emergency relief to proceed before courts had meaningful opportunities to determine if the executions were legal. Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief. The court has even intervened to lift stays of execution that lower courts put in place,” she added, “thereby ensuring those prisoners’ challenges would never receive a meaningful airing.”

Robert Dunham, the executive director of the nonprofit Death Penalty Information Center, also took note of the unprecedented sequence of events.

“Death penalty proponents have always said that the system is set up in a way to protect against government excess,” he told me, but there had never been an administration like Mr. Trump’s. “Now that we’ve seen the kind of blatant disregard for the law and the way that the courts simply caved to his desires, it is absolutely clear that the system cannot protect itself against abuse.”

The government has not clearly explained how or why these particular 13 people were selected to die. As the court found in the Furman case, the designation of the quick and the dead seemed almost entirely arbitrary.

Mr. Enzinna was still worried for his client James Roane, 48 hours out from Mr. Biden’s inauguration. Mr. Roane was sentenced to death in 1993 for murdering several rivals and enemies in a drug-dealing enterprise, along with two co-defendants, Corey Johnson and Richard Tipton. Mr. Roane and Mr. Tipton are alive today. Mr. Johnson was executed a week before Mr. Biden was sworn in. Nobody seems to know why Mr. Johnson was chosen while Mr. Roane and Mr. Tipton were passed over. Maybe there is no reason. Oftentimes there isn’t.

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But bracket all that. Even if federal procedure could be reformed to prevent future efforts to replicate Mr. Trump and Mr. Barr’s assembly line of death, capital punishment would still be capricious and discriminatory.

Miriam Krinsky can tell you all about it, having worked for 15 years as a federal prosecutor and served on the advisory committee on sentencing for the attorney general of California. She has seen capital punishment cases from incident report to execution date, and she has no faith that there can be a fair and just death penalty.

“To presume that we can fix it is — is just not to understand how broken it is,” she told me. These days, Ms. Krinsky runs Fair and Just Prosecution, an advocacy group that aims to educate a new generation of prosecutors.

Certain flaws arise from the very nature of death itself, she pointed out. With life on the line, the highest stakes come into play, and every incentive becomes perverse.

“The threat of a death sentence,” Ms. Krinsky said, “causes the system to crumble. It leads to individuals becoming cooperators or informants and creating fictional accounts — or the number of instances where we now know without a doubt that we’ve secured false confessions.”

Juries are subject to subtle persuasion as well as informants. The Supreme Court held that people categorically opposed to the death penalty — perhaps as much as 40 percent of the population — can be excluded from juries in capital cases. Research shows that the resulting “death qualified” jurors are more likely to hand down convictions and often come to conclusions about punishment before the sentencing phases of their trials, and that merely going through the process of jury selection for capital cases prejudices them against defendants.

Random chance plays an enormous role in capital punishment, from the makeup of juries (one study found that majority female juries are much less likely to sentence defendants to death than juries with equal numbers of men and women) to the immigration status of defendants (liberals and conservatives alike are less likely to sentence U.S.-born individuals to death than authorized or undocumented immigrants.)

The race of perpetrators and victims can determine whether trials conclude in a death sentence. Multiple studies carried out over decades show that capital sentences are disproportionately given to Black defendants convicted of killing white victims.

Bernard Harcourt, a professor of law and political science at Columbia who has defended clients on death row, told me: “Basically we value less the life of an African-American person than we do the value of a white person, because we impose the death penalty so many times more” — four to seven times as often — “on people who are accused of killing a white person.”

Disability, too, factors heavily into capital sentencing. While the Supreme Court has ruled that it is unconstitutional to execute intellectually disabled people, people with cognitive disabilities have certainly been executed — Corey Johnson, as recently as last month. Others have been sentenced to death and exonerated (sometimes posthumously) in part because people with intellectual disabilities are much more likely to submit false confessions under interrogation by police.

But by the time executions are carried out, none of that randomness is visible. Everything appears to be in order. And appearances matter, because execution is theater.

In the squat brick building in Terre Haute where the federal government puts people to death, separate chambers surround the gurney where the inmates are put on display so observers can watch the killing. One room is for victims’ families, one is for lawyers, and one is for the media. When I witnessed in December the execution of Alfred Bourgeois, who killed his 2-year-old daughter, I felt I was meant to feel the grisly affair was sterile, routine, orderly.

And so were you, the audience for whom this performance is staged, the unspoken patrons who fund these killings with your tax dollars.

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Mr. Biden can end this charade.

“Eliminate the death penalty,” reads the boldest proposal on his campaign website, filed under the heading of “justice.” The text goes on to acknowledge death row exonerations as proof of unacceptable risk and states that, as president, Mr. Biden “will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”

He now has his opportunity. Democratic lawmakers have put forth a bicameral proposal that would turn Mr. Biden’s campaign promise into policy and abolish the federal death penalty. Meanwhile, dozens of House members, led by Representative Cori Bush of Missouri and Representative Ayanna Pressley of Massachusetts, submitted a letter to Mr. Biden asking that he commute the remaining 49 federal death sentences to life in prison.

And he should. Those commutations, if coupled with a decision by Mr. Biden’s attorney general to direct federal prosecutors to stop seeking death sentences, withdraw notices of intent to seek death sentences, and terminate federal appeals in capital cases where courts have granted defendants relief, would forfend another rampage like Mr. Trump’s for some time.

Only signing an abolition bill like the one gaining momentum in Congress will prevent it for good.

When I asked Michael Gwin, Mr. Biden’s rapid response director, what action the president planned to take on the federal death penalty, Mr. Gwin replied: “The president made clear his abhorrence of the heinous execution spree we just witnessed under the previous president. He has also noted that the risk of executing the innocent is too high, with over 170 people on death row exonerated since 1973. He believes the application of the death penalty is deeply flawed and will have more to say about this issue in the future.”

Moving to abolish the death penalty might seem like bold action for a politician as dedicated to healing the country’s political rift as is Mr. Biden. But there are reasons to believe that conservatives are no longer especially wed to the death penalty, despite Mr. Trump’s efforts to politicize the issue.

Republicans in red states — like Kansas, Wyoming and Kentucky — have sponsored bills to end capital punishment. In 2019, New Hampshire abolished its death penalty, thanks to a bipartisan coalition in its Senate. And this week Virginia — whose death chamber was once one of the busiest in the country — is expected to do the same. A moratorium holds back executions in Ohio, and a recent poll found that 53 percent of the state’s Republicans want to repeal the death penalty.

Abolition may be less politically costly than one might think, and it is worth the expense regardless: Any other measure will fall short.

Killing machines are made to kill, as Homer wrote: “The blade itself incites to deeds of violence.” As long as one brick of Terre Haute’s death house remains stacked upon another, it will invite further executions carried out by future administrations and future courts, and then as now, there will be nothing we can do to stop it, unless we end it altogether.

Elizabeth Bruenig (@ebruenig) is an Opinion writer.

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