After a seventeen-year hiatus in federal executions, former president Donald Trump’s administration resumed the practice by carrying out thirteen executions starting July 2020. This was more than three times the number of executions carried out by the federal government previously in the past sixty years. While the Trump Administration claimed the increase in executions was to uphold justice, critics believed that the move was politically motivated to boost Trump’s image as a “president of law-and-order” during the election cycle.
Historically, the use of the death penalty in America has been highly debated. In fact, in 1972, the Supreme Court ruled in the Furman v. Georgia that the death penalty constituted as cruel and unusual punishment – violating the Eighth and Fourteenth Amendments. However, after this ruling, states began to enact new capital punishment statues which required a two-stage trial process. In this process, a jury would first rule on a defendant’s innocence or guilt and then make a second ruling about whether the accused should be imprisoned or given the death penalty.
In 1976, the Supreme Court ruled that these new statues contained “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death,” and that “the punishment of death does not invariably violate the Constitution.” This resulted in 38 states and the federal government resuming executions modeled after these guidelines.
Since then, there have been further changes made to who can be sentenced to death. In 2002, the Supreme Court ruled in Atkins v. Virginia that criminals with intellectual disabilities may not be executed, as that would constitute as cruel and unusual punishment. Additionally, in 2005, the Supreme Court ruled in Roper v. Simmons that the death penalty could not be imposed on criminals whose crimes were committed before they were eighteen years old.
However, there have also been expansions to the death penalty, such as the Anti-Drug Abuse Act of 1988—which expanded the death penalty to be applicable to some drug offenses. The 1994 Violent Crime Control and Law Enforcement Act created 60 new death penalty offenses—including crimes related to acts of terrorism, non-homicidal narcotics offenses and the murder of a federal law enforcement officer.
Federal executions halted in 2003, though, due largely to shortages of pancuronium bromide– one of the drugs used in the three-drug cocktail used in lethal injections. But in July 2019, former Attorney General William Barr announced that the federal government would resume executions using the drug pentobarbital, instead. Pentobarbital is commonly used in pet euthanization procedures and, since 2011, has been used to carry out executions in seven states.
Pentobarbital was used in the botched execution of Michael Lee Wilson in 2014—in which Lee said, “I feel my whole body burning” twenty seconds after the lethal injection was administered. Lethal injections are not supposed to cause pain before death, as doing so would qualify as cruel and unusual punishment. Lawyers have also argued that pentobarbital floods the recipient’s lungs with foam, which causes a sensation similar to death by drowning.
The Justice Department, though, has claimed that the Bureau of Prisons has “consulted with medical professionals” to ensure that use of pentobarbital in lethal injections is humane. The Bureau of Prisons, actually, has only consulted one medical professional; as one of two expert witnesses they consulted, Craig W. Lindsley, is a professor of chemistry and pharmacology, and is not a physician or licensed care provider.
Many allege that the recent surge in federal executions since July 2020 is politically motivated, as Joe Biden openly opposed the death penalty during his presidential campaign. This led to federal execution cases being rushed through the Supreme Court in anticipation of Biden’s presidency.
After the Supreme Court allowed for the execution of Dustin Higgs to occur on Jan. 15, Justice Sonia Sotomayor said, “Over the past six months, this court has repeatedly sidestepped its usual deliberative processes, often at the government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions.” Sotomayor also reported that the court often made these decisions with very little briefing; being given only “a few short days or even hours” to deliberate.
But, as the Trump administration pushed these executions, polls showed that American support for the death penalty is waning. In November 2020, a Gallup poll concluded that public support for the death penalty was the lowest it’s been in 48 years—with 43% of respondents saying they oppose the death penalty as a punishment for murder. Additionally, a 2018 Gallup poll showed that only 49% of Americans believe that the death penalty is applied fairly.
These sentiments are further reflected in the American Civil Liberties Union’s outlined objections to the death penalty. The ACLU highlights that the death penalty is often applied arbitrarily and discriminatorily—with it being imposed most often on “those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country.”
The ACLU also claims that the death penalty does not act as a deterrent for crime either; arguing that the death penalty cannot be administered consistently and promptly enough to act as an effective deterrent, most people who commit crimes that warrant the death penalty do not premeditate their crimes and that permanent imprisonment is severe enough of a punishment to deter violent crime.
As the Biden administration takes office, the future of the federal death penalty seems bleak. Congress members also appear to be throwing their support behind abolishing the death penalty—with 35 members urging Biden to commute the sentences of all inmates on federal death row this past Friday. However, there it is still uncertain how soon Biden will take action on the subject; with White House press secretary Jen Psaki saying on Wednesday that the administration does not “have anything more for you in terms of future actions or mechanisms.”