For a President who is a longstanding proponent of capital punishment and is gearing up to run a law-and-order re-election campaign, Attorney General William Barr’s June 15 order to resume federal executions was a gift. As Barr in a statement accompanying the order, “The American people, acting through Congress and Presidents of both political parties, have long instructed that defendants convicted of the most heinous crimes should be subject to a sentence of death.”
Ignoring the federal death penalty’s well-documented problems of inequity, arbitrariness, and racial discrimination, he continued, as if previewing a Trump campaign commercial, “We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”
Barr’s decision builds on the federal death penalty’s long history in the United States.
That history began on June 25, 1790, when Thomas Bird became the first person executed by the federal government for committing a “murder on the high seas.” From 1790 to the middle of the 20th century, there were just 340 federal executions, with the most famous being the execution of Julius and Ethel Rosenberg in 1953.
They were put on hold in 1972 when the U.S. Supreme Court found capital punishment to be unconstitutional and reinstated in 1988, as part of the Anti-Drug Abuse Act. At the time, very few federal crimes carried death sentences.
That changed six years later when the Federal Death Penalty Act added many more offenses to that list. There are now more than 60 of them, including crimes like carjacking or aircraft hijacking which cause death, and crimes that may not result in death, like terrorism and large-scale drug trafficking.
Yet the use of the federal death penalty pales by comparison with the situation in some American states.
Today, there are 2,558 people on death row in states that retain capital punishment, but there are just 62 inmates awaiting execution in the federal system. And while Texas alone has executed 567 people since 1988, only three people have been put to death by the federal government, the last one in 2003.
Throughout most of American history, racial disparities were much less apparent at the federal than at the state level. But that situation has changed dramatically, driven in part by the tough-on-crime politics of the last several decades.
A Department of Justice study published in 2000 found significant racial disparities in the department’s own handling of capital charging decisions. It reported that from 1995 to 2000, minority defendants were involved in 80% of the cases federal prosecutors referred to the department for consideration as capital prosecutions. In 72% of the cases approved for prosecution, the defendants were persons of color.
In addition, white defendants were twice as likely as members of racial minorities to be offered a plea deal with life in prison as the punishment.
Another study found a similar pattern in drug kingpin cases. The vast majority of defendants convicted under the 1988 law have been white. However, when the death penalty has been used in those kinds of cases, only 11% of the people convicted were white, while 89% were black or Hispanic.
And racial minorities now comprise 52% of the inmates awaiting execution at the federal penitentiary in Terre Haute, Indiana, a figure only slightly lower than the 55% found on state death rows.
But race is not the only source disparity in the federal system. Geography plays a key role as well in both charging and sentencing decisions.
From 1995 to 2000, 42% of the 183 federal death cases submitted to the Attorney General for review came from just 5 of the 94 federal districts.
Federal death verdicts, like those in the states, are concentrated in the states of the former confederacy. Three of them—Texas, Missouri, and Virginia—account for 40% of the total.
One additional problem is noteworthy: the federal death penalty raises serious issues for proponents of states’ rights and federalism. In cases, like the Boston Marathon Bomber, prosecutions have been carried out in jurisdictions where the death penalty is not authorized under state law.
Recognizing these difficulties, in 2014 President Obama asked the Department of Justice to conduct a comprehensive review of capital punishment in the U.S. As he said at the time, “In the application of the death penalty in this country, we have seen significant problems — racial bias, uneven application of the death penalty, you know, situations in which there were individuals on death row who later on were discovered to have been innocent.”
Ignoring those issues and resuming federal executions is just another way President Trump can distinguish himself from his predecessor. Unquestionably, that decision, and its sequencing of next steps, is deeply political.
It is no coincidence that Barr chose four inmates who had committed particularly grisly crimes for the resumption of the federal death penalty starting on July 13.
One murdered a family of three, including an 8-year-old. Another raped and murdered a 16-year-old girl and killed an 80-year-old woman. The third was sentenced for killing five people in Iowa, including two children, while the fourth was sentenced to death for kidnapping, raping, and strangling a 10-year-old girl who was rollerblading in front of her Kansas home.
Barr’s decision, and these choices, tee up the death penalty as a campaign issue for 2020. In the run up to the executions, the President will surely accuse former Vice President Biden, who now opposes the death penalty, of siding with child killers.
Whatever the outcome of his effort, all Americans have a stake in stopping the federal death penalty. Whether we live in states that have abolished or that retain capital punishment, we should take note: when the federal government puts someone to death, it does so in all of our names.
Source: verdict.justia.com, Austin Sarat, June 23, 2020. Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde