The United States Brings Back The Federal Death Penalty

Each of their sickening crimes was different – one decapitated his victims, another molested a child before committing murder, a third indulged in torture – but the five men all have something in common: they’ll soon be dead. For the first time in 16 years, the United States federal government will execute those convicted of the most heinous crimes. Ending the US’ informal death penalty moratorium, Attorney General William Barr directed prison authorities to terminate five of the 62 federal death-row inmates, saying that they “owe it to the victims and their families” to follow through with the punishment. The announcement has drawn sharp criticism from legal, humanitarian, and political groups alike, who view the practice as backward and inhumane.

America’s relationship with capital punishment is complicated. The Supreme Court outlawed the death penalty at both state and federal level in 1972, but voted to reinstate the practice in the years that followed. Since 1988, 78 people have been sentenced to death in federal cases – but only three have been executed, the last in 2003. The death penalty is currently legal in 29 states, with around 2,600 awaiting their fate nationwide, though the pace of state-level executions seems to be slowing. 

That the pause in federal killing has come to an end under President Donald Trump is no surprise. For all his policy flip-flopping, Mr Trump has been consistent in his support of capital punishment. In 1989, he took out full-page advertisements in New York City newspapers urging officials to “BRING BACK THE DEATH PENALTY” following the rape of a jogger in Central Park. “If the punishment is strong,” he wrote, “the attacks on innocent people will stop”.

The five youngsters he sought the execution of were later exonerated thanks to cutting edge DNA technology. That the innocent young men could have been killed for a crime they didn’t commit didn’t seem to bother Mr Trump, who never apologised. Such cases of retrospective exoneration fuel the arguments against capital punishment. A team of legal experts at the University of Michigan concluded that at least 4.1% of the modern era’s death-row detainees are innocent. The 2014 study’s disturbing findings were borne out last year, when two inmates awaiting the death penalty were among 68 exonerated of homicide convictions.  

An inherent racism plagues capital punishment, critics also argue. While people of colour account for barely a fifth of the US population, over half of the 62 current death-row inmates are non-white, experts note. “At present, 55% of those on federal death row are Black, Latino, Asian, or Native America,” says Lisa Cylar Barrett, Director of Policy at the Legal Defense and Educational Fund. “Many on death-row are themselves victims of inadequate representation in their legal proceedings,” she added.

Despite these shortcomings, capital punishment is supported by around half of all Americans. That proportion has been far higher in years gone by – the mid-90s saw nearly 80% in favour of the practice. Since then, public attitudes have shifted significantly, with support reaching a record low in 2016. But that number has ticked back up again, pollsters at the Pew Research Center say, whose 2018 survey found backing to be at 54%. 

The drift in public opinion is often linked to publicity around botched executions, which have thrown the practice’s grisly nature into sharp relief. “I feel my whole body burning,” cried Michael Lee Wilson, a convicted murderer executed by Oklahoma state authorities in 2014. He’d been administered a lethal cocktail of pentobarbital, potassium chloride, and vecuronium bromide. In the same year, rapist and convicted killer Clayton Lockett regained consciousness after his deadly injection. He thrashed around for a full 43 minutes before dying of a heart attack.  

An agonising demise befits their crimes, more strident proponents of the punishment may say, but those carrying out the executions have a solemn duty to conduct their task painlessly. And so the focus now falls on how the government intends to administer its ultimate penalty. Barr’s announcement stated that pentobarbital alone would be used in forthcoming federal executions, following the lead of states like Texas, Missouri and Georgia. But amid widespread shortages of the lethal substance, critics are worried that sub-par suppliers may be tapped for stock.

Particular concern surrounds so-called ‘compounding pharmacies’ – generally smaller institutions which combine, mix or alter drugs, and which aren’t subject to the same approval processes as their larger counterparts. Last year, almost half of convicts executed in Texas – a state that uses compounding pharmacies – complained of a painful burning sensation, reports suggest. An investigation into the suppliers of the pentobarbital used found eight of the 200 had had their licenses revoked or were on probation. Poor pharmacological practice and the use of inferior quality chemicals can directly be linked to botched executions, experts believe.

“Improper compounding and testing procedures may leave fine particles undetectable by the naked eye in the solution, or larger particles that would not be detected by an untrained eye,” said Dr David Waisel, an anaesthesiologist and Harvard Medical School professor. “These particles can cause great irritation to the vein, resulting in extraordinary pain,” he added.

Regardless, America is set to rejoin the dwindling pack of state-sanctioned killers. Most developed nations have turned their backs on execution – the likes of Saudi Arabia, Iran, and China are now the practice’s leading proponents. But re-election year is looming for Donald Trump, and he knows a new front in his populist-driven culture war is likely to electrify the campaign. Critics argue the cost of such crass political point scoring can’t be human life, but those who’ve lost loved ones at the hands of the most heinous criminals are unlikely to care. Justice by death has the support of the American masses, however narrowly, and so it is – for the time being – back on the agenda.