The Justice Department announced Thursday that it plans to resume executing prisoners awaiting the death penalty, ending almost two decades in which the federal government had not imposed capital punishment on prisoners.
Attorney General William Barr ordered the Bureau of Prisons to schedule executions for five inmates currently on death row. The prisoners were convicted of murdering children.
The Trump administration’s push to resume capital punishment in the federal system, while not surprising, goes against the recent trend of declining executions across the country.
The last federal execution was in 2003. In the years since, there has been an informal moratorium on executions of federal prisoners, as Justice Department officials reviewed its lethal injection procedures. That practice was underscored during the Obama administration by then-Attorney General Eric Holder’s personal opposition to the death penalty, even while he approved prosecutors’ decisions to seek the death penalty in specific trials.
Barr said it was time for convicted killers sentenced to death by juries to receive that ultimate punishment.
“The Justice Department upholds the rule of law – and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr said in a statement.
Bar ordered the Bureau of Prisons to adopt a new policy for lethal injections, one that officials said closely mirrors the protocols used in Georgia, Missouri, and Texas, replacing a three-drug lethal combination with one drug, pentobarbital.
The number of executions nationwide has plummeted over the last two decades, falling to 25 executions last year, down from 98 carried out in 1999. The number of states carrying out death sentences has also declined as some have abolished capital punishment, announced moratoriums or struggled to obtain the drugs sought for executions.
New Hampshire abolished the death penalty earlier this year, making it the 21st state to formally abandon capital punishment. In some of the other states where it remains the law, the death penalty is effectively frozen, including by governor-issued moratoriums in California and Pennsylvania and a court order in North Carolina.
Supporters of capital punishment, who argue that it should be applied for heinous crimes, have said that delays in carrying out death sentences are unfair to the relatives of victims. Opponents of the practice have argued that the system is dangerously flawed, pointing to cases of people who have been exonerated after being sentenced to death.
Ruth Friedman, head of the Federal Capital Habeas Project, which seeks to improve legal representation for people on federal death row, said there were “troubling questions about the new execution protocol” announced Thursday.
“A pervasive myth is that the federal death penalty is ‘the gold standard’ of capital punishment systems, applied only to the worst offenders for a narrow class of especially heinous crimes involving unique federal interests, with highly skilled and well-resourced lawyers on both sides,” she said in a statement. “This is false. In fact, the federal death penalty is arbitrary, racially-biased, and rife with poor lawyering and junk science.”
Friedman called for “additional court review before the federal government can proceed with any execution.”
Nationwide, most Americans support the practice, though the amount has declined significantly since the mid-1990s. At that time, when crime rates were far higher, four in five Americans backed capital punishment, while a Pew Research Center poll last year found that 54 percent of people supported it.
According to Pew, most Republicans still back it, while Democrats oppose the death penalty. President Donald Trump has been an outspoken supporter of capital punishment for decades, while Democratic candidates running against him have argued that it should be abolished.
The Justice Department’s decision to shift to a single drug for lethal injections – which remain the primary method of executions nationwide – mirrors a move that has taken place in states facing difficulties in obtaining the drugs officials have sought.
States still seeking to schedule executions have scrambled to obtain lethal injection drugs in recent years in the face of opposition from pharmaceutical firms that do not want their products used in carrying out death sentences.
Companies have tightened their restrictions on how such drugs are sold and, in some cases, have gone to court to try to prevent them from being employed to carry out death sentences.
In some states, authorities have moved to rewrite their execution protocols to rely on different drug combinations – in some cases, doing so multiple times – or expanded their ability to use other execution methods such as the firing squad, electric chair and nitrogen gas. Nebraska last year became the first state to use the powerful opioid fentanyl in an execution.
Texas, Georgia and Missouri – three of the 11 states that have carried out executions since 2017, and all among the country’s most active death-penalty states – have shifted their protocols from three-drug combinations to relying only on pentobarbital, according to the Death Penalty Information Center.
The Justice Department has sought and won death sentences in two high-profile cases in recent years, sending both the Boston Marathon bomber and the Charleston, South Carolina, church gunman to death row.
When Dzhokhar Tsarnaev, the surviving Boston Marathon bomber, was sentenced to death in 2015, the Justice Department was operating under a de facto moratorium on executions due to an ongoing review of its federal death penalty policy. The government lacked the drugs needed to carry out an execution at that time.
It was not immediately clear whether the federal government had obtained the pentobarbital needed for the executions announced Thursday. The Bureau of Prisons declined to comment.
Toward the end of the Obama administration, the bureau said it was still “in the process of revising its execution protocol.” The Washington Post had inquired earlier this year regarding the federal death penalty and whether the Bureau of Prisons had execution drugs or was trying to obtain them. The bureau said that “protocols surrounding executions are law enforcement sensitive; thus, we are unable to provide them.”
Federal death sentences account for a fraction of the more than 2,600 people on death row in the United States. Executions are also extremely rare for federal prisoners, with the government carrying out three executions since the federal death penalty statute was expanded in 1994.
In 2001, the government executed Timothy McVeigh for the Oklahoma City bombing and Juan Raul Garza for murdering three men. The last federal inmate to be executed was when Louis Jones was put to death in 2003 for the kidnapping, rape and murder of 19-year-old Army private Tracie Joy McBride. All three executions were carried out using the three-drug protocol.
(c) 2019, The Washington Post · Devlin Barrett, Mark Berman