Today's Paper Latest Coronavirus Tokyo Olympics The Article Core Values iPad Weather Story ideas Archive Puzzles Obits Newsletters

OPINION | ELIZABETH BRUENIG: End federal death penalty

by Elizabeth Bruenig The New York Times | February 21, 2021 at 10:19 a.m.

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. U.S. drug manufacturers didn't want to produce the lethal chemicals, U.S. 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 past 60 years.

President Joe 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. 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 Trump and his Attorney General William Barr unleashed be the death knell for the federal death penalty.

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 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 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 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 crimes, their youth at the time of the crimes 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 Lee's stay of execution around 2 a.m. July 14; 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 U.S. 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 at 2:45 a.m. July 16, clearing the way for killing him. 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 said, but there had never been an administration like 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.

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

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

Bruenig writes for The New York Times.


Sponsor Content