In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
On Thursday morning, attorney general William Barr announced plans for the federal government to resume the practice of executing death row inmates for the first time in more than 15 years. His order directs the Federal Bureau of Prisons to set execution dates for five individuals, whose deaths will take place by lethal injection at the federal penitentiary in Terre Haute. "Additional executions," the Department of Justice's release concludes, "will be scheduled at a later date."
Capital punishment has been legal in the United States since the Supreme Court's 1976 decision in Gregg v. Georgia, which set out standards under which the death penalty does not violate the Eighth Amendment's prohibition on cruel and unusual punishment. Congress formally reinstated capital punishment at the federal level in 1988, but in practice, the government has put only executed three people pursuant to that law, most recently in 2003. Since then, it has imposed a de facto moratorium while the Department of Justice conducts an internal review of its "federal execution protocol"—the methods the state uses to kill.
Traditionally, the process of lethal injection actually required the administration of three separate drugs: a sedative, a paralytic, and a drug that stops the heart. But over the past decade, there has been a global shortage of some of these ingredients, spurred on by activists who pressured pharmaceutical manufacturers not to sell to governments that intended to use the product for capital punishment. Without a viable method of execution, the federal government stopped trying to carry out the sentence. Unable to ensure that experimental drug cocktail alternatives wouldn't cause inmates excruciating pain, some states arranged for inmates die by electric chair, gas chamber, or firing squad instead.
Barr's announcement orders the Bureau of Prisons to adopt a new protocol, replacing the three-drug "cocktail" with a procedure that uses only one drug, pentobarbital. A handful of states, including Georgia, Missouri, and Texas, have made the switch in recent years. Although the process of procuring this drug, too, is complicated and unreliable—Missouri officials, as detailed in a 2017 Buzzfeed News investigation, buy the state's vials in cash from a St. Louis-area manufacturer—the Department of Justice says that since 2010, 14 states have used it in over 200 executions.
The move is a marked departure from a national trend away from use of the death penalty. Twenty-one states and the District of Columbia have abolished it entirely, and four more states—Oregon, Colorado, California, and Pennsylvania—have governor-imposed moratoriums in place. This shift is attributable not only to the aforementioned logistical difficulties, but also to an emerging understanding of capital punishment's many troubling shortcomings.
Members of some minority groups are disproportionately likely to receive death sentences, and more than half of death row inmates are African-American or Latino, according to the Death Penalty Information Center. Black defendants in cases involving white victims are likelier to be sentenced to death than defendants in any other kind of case. And the price tags associated with appeals, incarceration, and execution make capital punishment far more expensive than imposing a life sentence. A 2017 study in Oklahoma found that seeking the death penalty requires the state to spend $700,000 more per inmate in costs it would not otherwise incur.
Modern developments in science and technology have exposed the death penalty as a dangerously inaccurate method of meting out justice, too. According to the National Coalition to Abolish the Death Penalty, as of October 2015, 156 death row inmates people had been exonerated since 1973, which works out to at least one wrongfully-convicted person for every 10 people put to death. Capital punishment is not the only arena in which the criminal adjudication system gets things wrong, punishing innocent people for crimes they did not commit. But once the sentence is carried out, it is the only arena in which errors cannot be undone. In a dissenting opinion to an unsuccessful 2015 challenge to challenge to Oklahoma's lethal injection procedure, Supreme Court justice Stephen Breyer went so far as to suggest that it is "highly likely" that the modern death penalty—whatever its form—constitutes cruel and unusual punishment.
Reinstating federal capital punishment is consistent with the self-proclaimed "law and order" president's passion for "toughness," and his unabashed contempt for people he believes deserve harsher treatment. Thursday's announcement is peppered with lurid, fearmongering descriptors of those scheduled for execution, denouncing them as among the "worst criminals" who victimize the "most vulnerable" members of society. Putting them to death, the release argues, is necessary to "uphold the rule of law," and provide "justice to victims of the most horrific crimes." (When it comes to soldiers who kill detainees or police officers who kill unarmed civilians, though, his administration has shown a willingness to let them off the hook altogether.)
On the campaign trail and since taking office, Trump has argued that anyone convicted of killing law enforcement officers should automatically receive the death penalty, and on an expedited basis. After five teens of color were arrested in connection with a brutal attack on a Central Park jogger in 1989, then-private citizen Trump proposed his solution in a full-page ad in the Daily News. "BRING BACK THE DEATH PENALTY!" it began. "BRING BACK OUR POLICE!" In 2002, the Central Park Five's convictions were vacated after a different person confessed to the crime, and DNA evidence corroborated his account. To this day, Trump has never walked back from his statement. “You have people on both sides of that,” he told reporters last month, scoffing at the very notion that he would offer an apology. “They admitted their guilt.”
Today's decision embraces a regressive, archaic view of criminal justice that prioritizes a purported collective obligation to seek retribution above everything else. In the Trumpian worldview, the systemic flaws inherent in America's administration of the death penalty—its racial biases, its astronomical costs, and its uncorrectable mistakes—are all irrelevant.
Originally Appeared on GQ