The impact of reviving the federal death penalty

U.S. Atty. Gen. William Barr announced the Justice Department will resume executions of federal death row inmates. Photo: John Bazemore/Associated Press
By Robert C. Jones Jr.

U.S. Atty. Gen. William Barr announced the Justice Department will resume executions of federal death row inmates. Photo: John Bazemore/Associated Press

The impact of reviving the federal death penalty

By Robert C. Jones Jr.
University of Miami legal experts in law and sociology weigh in on the Justice Department’s decision to restart executions.

Barring a last-minute stay, Daniel Lewis Lee will be strapped to a gurney at the U.S. penitentiary in Terre Haute, Ind., on Dec. 9, asked if he would like to make a final statement, and then administered a lethal injection of pentobarbital.

Over the next 37 days, four other men will follow him into the death chamber, and if the U.S. Department of Justice has its way, they won’t be the last.

With Atty. Gen. William P. Barr’s announcement that the U.S. government would resume executions of federal death row inmates after a nearly two-decade hiatus, capital punishment has once again been thrust into the national spotlight, becoming, along with gun control, a contentious issue of debate, especially in the wake of the mass shootings in El Paso, Texas, and Dayton, Ohio.

In the 1972 landmark Furman v. Georgia case, the Supreme Court struck down state and federal death penalty laws. The court reinstated the death penalty in 1976, and several states quickly adopted laws restoring capital punishment. The U.S. government did not do so until 1988, but only for a few offenses. The Federal Death Penalty Act of 1994 greatly expanded the number of crimes eligible for capital sentences. But since then, only three federal death row inmates have been executed, with the last sentence being carried out in 2003.

In making his announcement, Barr did not say why the government is restarting executions after what had been essentially a moratorium. But with an election year on the horizon, could the decision be politically motivated—an attempt by the current administration to show voters it is tough on serious crime?

“Crime and punishment in the United States has been used as a political weapon for decades. From George H.W. Bush’s Willy Horton ad to Bill Clinton’s 1994 Crime Bill, politicians have been lining up for years to be tougher on crime than their opponents,” said Craig J. Trocino, director of the University of Miami School of Law’s Innocence Clinic. “Sentences have been increased from mandatory minimums to three-strikes laws. It is no surprise that the ultimate punishment, the death penalty, is also political. The ultimate penalty as the ultimate tough-on-crime stance is a political position some find too good to pass up.”

The government’s decision to restart executions comes at a time when most states are forgoing the death penalty altogether, replacing it with life-in-prison sentences. A total of 21 states have outlawed the death penalty.

Meanwhile, opponents of capital punishment, armed with data and statistics, continue to make a strong case against it, arguing that it is racially biased and arbitrarily administered.

“The most disturbing fact for everyone, even death penalty supporters, is of course the astonishing number of individuals who have been sentenced to death and were later exonerated,” said Scott Sundby, a professor of law and Dean’s Distinguished Scholar at the School of Law, who is the author of “A Life and Death Decision: A Jury Weighs the Death Penalty.”

Sundby noted that the state of Illinois, before it abolished its death penalty, had exonerated more of its condemned death row inmates than it had executed. Nationwide, more than 160 people sentenced to death since 1973 in the United States were later exonerated.

Sundby, Trocino and Nick Petersen, an assistant professor of sociology and law in UM’s College of Arts and Sciences, weigh in on some of the important issues surrounding capital punishment.

What are some examples of crimes that would allow the federal government to seek the death penalty even when the crime is committed in a state that has outlawed it?

In order for the federal death penalty to be implicated it must be in the confines of a federal crime in order for the United States to have jurisdiction over the case. However, with the implementation of the 1994 crime bill, federal death penalty prosecutions increased dramatically. For instance, if a victim is killed with a gun, it would normally be a state case. But if that gun was classified as “an illegal firearm,” then the murder could be prosecuted federally. Also, carjacking that causes a death or a drive-by shooting that is “gang related” can also be prosecuted federally. Armed with this, federal prosecutors have increased death penalty prosecutions, and in particular, in states that have abolished it. For instance, Illinois instituted a moratorium on the death penalty in 2001 after it executed 12 people but exonerated 19. In 2011, Illinois formally abolished the death penalty.  Nonetheless, federal death prosecutions have increased in Illinois.

Craig Trocino, director of the Innocence Clinic at the University of Miami School of Law.

The five inmates scheduled for execution in December and January were all convicted of murdering children. Could the Department of Justice be attempting to make a more powerful argument for its case to resume capital punishment by scheduling the executions of inmates convicted of murdering children?

Given that the Department of Justice’s news release heading specifically noted that the five had been convicted of murdering children, there is no doubt that was a primary reason they were chosen. One also suspects that the race of the inmates entered into the DOJ’s equation as a way to try to keep the death penalty’s continuing problems with racism in the background. Even though over half of the federal death row consists of racial and ethnic minorities, three of the five whose executions were scheduled are white. In other words, the DOJ is staging these executions in a way that they believe will be most likely to engender public support for the executions.

—Scott Sundby, professor of law and Dean’s Distinguished Scholar at UM’s School of Law.

Proponents of the death penalty have argued that it is a deterrent. Is it?

The death penalty is not a deterrent despite the claims of its proponents. In 2012 the National Research Council concluded that the studies claiming it is a deterrence were fundamentally flawed. Additionally, a 2009 study of criminologists concluded that 88 percent of criminologists did not believe in the death penalties deterrence while only 5 percent did. Perhaps the most consistent and interesting data that the death penalty is not a deterrence is to look at the murder rates of states that do not have the death penalty in comparison to those that do. In states that have recently abolished the death penalty, there has been no increase in murder rates. In fact, since 1990 states without the death penalty have consistently had lower murder rates than states that have it.

Craig Trocino, director of the Innocence Clinic at the University of Miami School of Law.

Social science research does not support the contention that the death penalty deters crime. In 1978, the National Research Council, one of the most prestigious scientific institutions in the nation and world, noted that “available studies provide no useful evidence on the deterrent effect of capital punishment.” A 2012 report by the National Research Council reached a similar conclusion. Citing a number of problems with deterrence research, the council reported that “claims that research demonstrates that capital punishment decreases or increases the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy judgments about capital punishment.”

—Nick Petersen, assistant professor of sociology and law in UM’s College of Arts and Sciences.

What are the serious flaws with the death penalty?

The death penalty has many flaws that are not as commonly known. Just as a sampler: (1) studies continue to find that death sentences are racially biased, both in terms of who receives a death sentence and the race of the victim. Someone who kills a white victim is more likely to receive a death sentence than the killer of a minority victim); (2) Death rows are comprised largely of individuals suffering from mental illness and intellectual disabilities. Although the Supreme Court in theory barred the death penalty for intellectually disabled individuals, many still receive the death penalty either because their IQ tests are a few points above the cutoff or because of the way the state makes the determination); (3) The juries that impose death sentences generally are not representative of the general population in terms of race and gender; (4) The death penalty is far more expensive to impose and carry out than life-without-parole sentences; (5) The vast majority of death sentences are from only a handful of states, and if one turns up the magnification further, only from a small percentage of counties (2 percent of the country’s counties are responsible for more than a majority of all death sentences).

—Scott Sundby, professor of law and Dean’s Distinguished Scholar at UM’s School of Law.

There are serious problems with the implementation of the death penalty regardless of what jurisdiction is doing it. There is a misplaced notion that the federal death penalty is better than any state system could be. This is simply not the case. All of the problems with the death penalty exist equally in the state and federal systems. The causes of wrongful convictions are well known and occur in both the state and federal system. Things such as faulty eyewitness identification, false confessions, incentivized testimony, junk forensic science, police and prosecutorial misconduct, and ineffective defense lawyers all exist equally in the federal system as they do in the state system. Racial bias is indeed a major factor in the decision to seek the death penalty. Prosecutors have immense discretion is whether to seek the death penalty in a prosecution. Those discretionary decisions are made in myriad ways that sometimes, unfortunately, are based on biased decision-making.

Craig Trocino, director of the Innocence Clinic at the University of Miami School of Law.

A wealth of research has shown that death penalty decisions are influenced by race, geography, and other extra-legal factors. My own research finds cumulative racial and ethnic disparities in death penalty cases, with accumulating inequalities across multiple stages of the death penalty system. In addition, I have found that murders involving white victims are more likely to be solved by the police than those with black victims, and that these policing disparities contribute to inequalities in death-penalty charging decisions.

—Nick Petersen, assistant professor of sociology and law in UM’s College of Arts and Sciences.

The federal government plans to replace the three-drug protocol previously used in federal executions with a single drug, pentobarbital. Could the five inmates scheduled for execution have a potential appeal based on the Eighth Amendment?

The likelihood of the executions proceeding forward in the near future is fairly slim. The manufacturer of pentobarbital has cut off supplying it for executions, leading to a shortage. The Federal Bureau of Prisons has refused to say if it has any stockpiled, and while some states have turned to compounding pharmacies, the FDA has started to crack down on the pharmacies because of serious quality control issues. In other words, it is unclear whether they can get the pentobarbital. Even if they can, however, there are serious legal issues to be litigated. The first is whether the protocol constitutes cruel and unusual punishment under the Eighth Amendment by inflicting unnecessary pain, an issue especially highlighted by the lack of quality control in its manufacturing. There also is an issue whether Barr’s promulgation of the new death penalty protocol comports with the Administrative Procedural Act. Given that there has not been a federal execution in sixteen years, the sudden push to execute five individuals over the one-month winter holiday season will likely run into legal and logistical headwinds.

—Scott Sundby, professor of law and Dean’s Distinguished Scholar at UM’s School of Law.