After Near-Two-Decade Hiatus, Feds to Resume Executions

Five to be put to death, Attorney General Barr orders

Attorney General William Barr / Getty Images
July 25, 2019

The federal government will resume executions of federal death row inmates, the Department of Justice announced Thursday, ending a 16-year spell in which not a single federal execution has occurred.

Attorney General William P. Barr issued instructions to the Bureau of Prisons to amend the Federal Execution Protocol, the set of procedures that outline exactly how executions are conducted. According to DOJ, this amendment will clear any procedural hurdles standing in the way of proceeding with executions. In addition, Barr instructed acting BOP director Hugh Hurwitz to schedule the execution of five federal death row inmates convicted of murdering children and the elderly.

"Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding," Barr said. "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."

The new rules are part and parcel with the Trump administration's hardline stance in favor of capital punishment, but also open opportunities for death penalty opponents to pursue new lines of attack against it.

Under the new rules, the federal execution protocol will change from a three-drug procedure to the administration of a single lethal dose of pentobarbital. DOJ did not specify where they would obtain a supply of pentobarbital. Shortages of the drug, artificially induced by abolitionist lobbying of pharmaceutical firms, were what led many states to switch their execution protocols to the use of more controversial drugs like midazolam.

The new simplified protocol is likely a move to forestall Eighth Amendment challenges from death penalty opponents, who have taken advantage of changing drug protocols in recent years to delay executions, arguing that the use of particular drugs is cruel and unusual. The frequency of these "method of execution" challenges has prompted multiple rebukes from the Supreme Court, including most recently in Bucklew v. Precythe, when Justice Neil Gorsuch authored a sweeping exposition of the death penalty's fundamental constitutionality.

The evolution of death penalty jurisprudence has taken place in the context of a de facto federal pause on executions. The most recent federal execution took place in 2003 under the auspices of the Bush administration. The death of murderer Louis Jones ended a spate of executions begun with that of Oklahoma-City Bomber Timothy McVeigh. Prior to McVeigh, there had been no federal executions since 1963.

While President Barack Obama avoided calling for death penalty abolition explicitly, his administration avoided using it entirely. In addition, Obama used the last week of his term to commute two federal death sentences. President Donald Trump's reversal of this trend is hardly surprising: During his campaign and since taking office, Trump has been an outspoken proponent of the death penalty, including for drug dealers.

The five scheduled to be executed include killers such as Daniel Lewis Lee, a white supremacist who drowned to death a family of three, and Alfred Bourgeois, who raped and then beat to death his own two-year-old daughter. According to DOJ, all five have exhausted all federal appeal opportunities, meaning that there is no recourse left to them to forestall their punishments. The executions will take place at the U.S. penitentiary in Terra Haute, Ind., over the course of December 2019 and January 2020.

Thursday's announcement drew praise from lawmakers. Sen. Tom Cotton (R., Ark.), an outspoken death penalty proponent representing the jurisdiction where Lee committed his crime, praised Barr.

"Most Americans have always believed that the death penalty is a just response to the most heinous crimes," Cotton said. "I commend the president and Attorney General Barr for reinstating the federal death penalty in order to carry out sentences imposed on five brutal murderers by juries of their peers. After many years of unnecessary delay, justice will soon be done for these criminals’ many victims, including the Mueller family of Tilly, Arkansas."

While the effects of reinstatement will be most obviously felt by the five newly condemned inmates, the revival of the federal death penalty will have implications for many others. According to the nonpartisan Death Penalty Information Center, there are currently 62 offenders on federal death row. Federal prosecutions mean that individuals can be executed for committing heinous crimes in states that do not have the death penalty, as in the case of Boston Bomber Dzhokar Tsarnaev.

The number of people executed annually has fallen steadily since the 1990s, according to the Bureau of Justice Statistics, reflecting both declining crime rates and increased appellate litigation. What effect a zealous Trump administration might have on that trend remains to be seen.

Update: this piece was updated at 3:30pm to add comments from Sen. Tom Cotton.