US Attorney General William Barr ordered the Federal Bureau of Prisons on Thursday to resume capital punishment for federal prisoners for the first time in nearly two decades, and to change the drugs it uses to carry out executions.
Five people, all of whom have been convicted of murder and other crimes, now have executions scheduled for December 2019 and January 2020. There are currently 62 individuals on federal death row, and the federal government has executed only three people since 1988.
“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.
The five inmates to be executed are Daniel Lewis Lee, who murdered a family of three; Lezmond Mitchell, who killed a 63-year-old woman and her 9-year-old granddaughter; Wesley Ira Purkey, who raped and killed a 16-year-old, in addition to two other victims; Alfred Bourgeois, who molested and killed his 2-year-old daughter; and Dustin Lee Honken, who fatally shot five people.
The death penalty has been on the decline in America: Although it’s still legal in 29 states, the number of executions carried out each year is falling, and the number of new death sentences is also on the decline. But at the federal level, the Trump administration wants to reverse the trend.
The federal government hasn’t executed anyone since 2003, and there’s a nationwide pushback against the practice
The death penalty as it was practiced in the US, including state and federal executions, was ruled unconstitutional by the Supreme Court in Furman v. Georgia in 1972, and then reinstated in 1988 when Congress passed the Anti-Drug Abuse Act.
Federal executions, though, were not reinstated until 1988, and then for only a narrow range of cases, according to the Death Penalty Information Center. The Federal Death Penalty Act of 1994 expanded the number of eligible offenses to 60, but the first federal execution still didn’t occur until 2001.
Federal executions are rare — only three people have been executed by the US government — because the death penalty, like most of the criminal justice system, works largely at the state level. The federal government continues to seek the death penalty, but federal executions were under an informal moratorium under President Barack Obama, who ordered the Justice Department in 2014 to conduct a broad review of its lethal injection practice and the drugs it uses.
Support at the state level is falling as well. In May, New Hampshire became the 21st state to abolish the death penalty. There are several explanations: Support from the general public is declining, there’s a persistent shortage of lethal injection drugs, the cost is high, and there’s a growing realization that the punishment is applied unequally.
The benefits of the death penalty are also simply questionable. As Vox’s German Lopez wrote:
The research and experts have long been skeptical that the death penalty actually deters or prevents more crime. As the Death Penalty Information Center noted, a 2009 survey of the US’s top criminologists found that 88 percent “do not believe the death penalty acts as a deterrent to homicide” and 87 percent “believe that abolition of the death penalty would not have any significant effect on murder rates.”
Experts also argue that the death penalty is inhumane. New York University professor David Garland, who has done extensive research on crime and punishment, called the practice “unnecessary and barbaric.”
“The idea that the government should be permitted deliberately to take the life of a living human being is an outrage when we have punishments — such as life in prison without parole — that serve the same criminal justice ends but do so more effectively and more humanely and in a more civilized way,” he said in an interview.
Amnesty International USA executive director Margaret Huang criticized the administration’s move, calling it out of step with both national and international trends.
“The Trump administration’s decision to restart federal executions after a 16-year hiatus is outrageous,” she said. “It is the latest indication of this administration’s disdain for human rights. The death penalty is the ultimate cruel and inhuman punishment. It is a system flawed beyond repair, and the federal government should not proceed with any executions.”
There are still states that practice executions regularly, such as Texas, Florida, Alabama, and Georgia. But for many states, death penalty sentences have been rendered almost useless as governors have vowed to block them or courts have shut them down as unconstitutional. It seemed like the government was backing these states with its informal moratorium on executions — until now.
Using pentobarbital is the government’s solution to a shortage of traditional lethal injection drugs
Another major change to the government’s execution protocol is the swap from a three-drug cocktail to just pentobarbital. A traditional three-drug cocktail consists of sodium thiopental, which induces unconsciousness; pancuronium bromide, which causes muscle paralysis and respiratory arrest; and potassium chloride, which stops the heart.
But there’s been a nationwide shortage of sodium thiopental. Since 2010, drug companies have refused to supply executioners with the drug for ethical reason or simply because they do not want to be associated with the practice.
In 2011, Hospira, the only US supplier of sodium thiopental, announced it would no longer produce the drug after pressure from a global campaign by death penalty activists. Since then, several states have had to delay their executions as they try to procure the drug from overseas.
Some states, however, have turned to pentobarbital, a drug that is commonly used as a sedative during surgeries. Before being used in the US as a substitute lethal injection drug, it was better known as a euthanasia drug in Europe. Texas was the first state to use the drug for lethal injection in 2012, and according to the Justice Department’s statement, 14 states have used it in more than 200 executions.
Yet the use of pentobarbital has been controversial because some claim it isn’t painless as promised. When Anthony Shore was executed with pentobarbital in 2018, he shouted, “I can feel that it does burn. Burning!” Several other Texan inmates made similar statements before their death. The Texas Department of Justice, however, refutes these claims and said the drug has been used for years without incident.
One big question is how the US will obtain pentobarbital, which is getting increasingly harder to obtain. Lundbeck, a Danish company that makes it, condemned the US for using its drug for execution and had even banned its US distributors from providing executors with the drug. Most states have a stockpile of lethal injection drugs — Texas has 27 doses left — but they’re quickly depleting.
It might not even matter that the US government won’t be able to proceed with the executions. If anything, the Trump administration is trying to make a political point here, Garland said.
“The federal death penalty being reinvoked and executions being scheduled is to make a political point, not because this is a government that feels that criminal justice can’t work if these individuals aren’t executed,” he said. “But purely to communicate that this is a tough government willing to put people to death to show its bravado and its masculinity.”