Donald Trump and his partisan sidekick William Barr have found a new secret ingredient to deflect attention from the coronavirus, economic depression and racist policing. No, not bleach or hydroxychloroquine or UV light — instead, it is pentobarbital, the lethal chemical being used to execute federal prisoners on death row after a 17-year hiatus on federal executions. Five men have been executed this summer; two more have been scheduled for September.
Violent crime has declined precipitously in the last 30 years. So has support for and use of the death penalty. This has been driven by effective advocacy in uncovering the frequent incidence of wrongful convictions, the disproportionate racial impact in the execution process and the reality of excruciating pain imposed by incompetently administered lethal injection protocols. Pharmaceutical companies do not want their products used to kill people. Even conservatives have stated to accept that the cost and timing of the execution process is hugely wasteful when weighed against life without parole.
So why has the Trump-Barr team decided now is the time to resume federal executions? The vast majority of capital cases are tried in the state court system, which has more than 2,500 of the 2,600 death row prisoners. As support for the death penalty wanes, only 15 state prisoners have been executed this year. Yet the Department of Justice, with a federal death row of fewer than 60 prisoners, appears committed to putting as many as possible to death between now and the election.
The US Code creates dozens of federal capital offenses that overlap state criminal laws. The existence of federal jurisdiction and prosecution in federal court is often based on random factors unrelated to federal interests — for example, whether the defendant crossed state lines. Certain cases are brought after a state homicide prosecution results in a life sentence and the federal government wants a second bite of the apple. The result is that DOJ has vast discretion over who to charge with a capital offense and against whom it will seek the death penalty.
The selections of federal prisoners have in no way been random, but rather the Trump-Barr administration has developed a cynical queue of the condemned to put through the process so that it will be able to speed into a lethal assembly line as the election approaches.
The first two men to die had white supremacist backgrounds, presumably not of the “good people on both sides” type. Attorney General Barr wanted to put a neutral frame around the process, stating that these were the worst of the worst, all child killers. As a symbolic device, it allows the death penalty to go forward without causing great moral anxiety about bias or just deserts. Both Barr and the Supreme Court ignored that of the five men executed, one was killed despite the strong objections of the victims’ family. The second prisoner executed was diagnosed with advanced dementia and it is not clear that he knew what was happening when he was strapped to the gurney. Keith Nelson, executed last Friday, had significant, diagnosed brain damage as a newborn, experienced repeated childhood sexual and physical abuse, and had a multigenerational family history of severe mental illness.
While four of the five men executed were white, a fifth — Lezmond Mitchell, executed last week — was a member of the Navajo Nation and was convicted of two homicides on tribal lands. The federal Major Crimes Act prohibits the government from seeking the death penalty against Native Americans for murders committed on tribal lands without the prior consent of the tribe, which the Navajo Nation officials declined to provide. So the federal government sought the death penalty under what the courts found to be a “loophole”— a provision of the Federal Death Penalty Act that permitted federal prosecutors to pursue the death penalty not for murder, but for a lesser crime “resulting in death.” The loophole worked and Lezmond Mitchell was executed over Navajo Nation objection.
The pentobarbitol protocol used for all five executions is, in the view of scientific experts, “very likely to cause plaintiffs extreme pain and needless suffering during their executions.” In each of the cases, a lower court judge granted an initial stay to address issues in particular cases as well as the cruelty of the lethal cocktail. The Supreme Court, in 5-4 rulings, with the two Trump appointees providing the deciding votes, vacated all the stays within hours and the executions went forward.
While 80 percent of the federal execution victims were white, that is about to change. A review by the Federal Death Penalty Resource Counsel found that, in over two-thirds of the more than 500 cases between 1988 and 2019 where the Attorney General authorized federal prosecutors to seek death, the defendant was Black or Latinx. The majority of people now on federal death row today are Black or Latinx. One of the two men scheduled in September is African-American.
The Trump-Barr’s priming of the pump over the summer assures that a reliable Supreme Court majority will fast-track executions without much inquiry into underlying legal issues or racial disparities. There is little doubt that the fall line-up will be far more diverse, perhaps the only diversity program remaining in this administration.
In the midst of a pandemic, an economic crisis, and a criminal justice crisis, why was it a priority for President Trump and Attorney General Barr — aided by Trump’s two conservative Supreme Court appointees — to make sure that men who have been on death row for two decades or more get executed now?
The answer is simple: this is the Law and Order President. He is running on American carnage. The symbolism of the death penalty is powerful, even if it has no discernible impact on crime rates. Capital punishment expresses the primacy of tribal values defining who is inside and outside the relevant moral community. The community that “dominates” the streets also can show that it has the power of life and death over those who transgress its values; who are vilified as anarchists, thugs and then criminals.
Make no mistake: this is a moral panic manufactured for political purposes and not based on facts on the ground. The Trump Administration is inviting fatal violence. That does not matter. Federal executions will continue; they will get faster and the victims will be more and more people of color as the election approaches, in an attempt to fan the flames of moral panic and disintegration.
This is not criminal justice. It is reality-show criminal justice, like so much else in the Trump presidency. But in the Trump-Barr reality show, real people die to serve as yet another prop in the Republican election year narrative of distraction, where the illusion of law and order disguises a crisis of lawlessness at the very top.
Eric Lewis is a New York-based human rights attorney and sits on the board of The Independent
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