The Justice Department is quietly amending its execution protocols, no longer requiring federal death sentences to be carried out by lethal injection and clearing the way for other methods.
( AP Photo/Michael Conroy, File
Tanzina: I'm Tanzina Vega and you're listening to The Takeaway. This summer, the Trump administration announced it would be resuming federal executions for the first time in 17 years. The federal government has since executed eight people and it has scheduled several more to take place in the coming weeks. If those are carried out, the planned executions would be the first to occur during a presidential transition in more than a century. For more on this, we're joined by Robert Dunham, the executive director of the Death Penalty Information Center. Robert, thanks for joining us.
Robert: Thank you for having me.
Tanzina: What explains the latest push for federal executions by the Trump administration?
Robert: I think the only way you can explain it is that this is what the Trump administration does. It has no historical precedent in the United States and there's no corrections reason, no penological reason for doing it, so this is just something that the Trump administration wants to do. It figures that it's more important now to execute prisoners than it is to concentrate on other matters.
Tanzina: What was the state of federal executions before the Trump administration took office?
Robert: There had been no executions in 17 years. Part of that was because a lot of the cases had not gone all the way through the appellate system, but mostly there was a lawsuit that was filed in the early 2000s, challenging the method of execution that the federal government was using. That lawsuit was working its way through the courts and then was finally halted by the federal government when they said, we don't have execution drugs so this doesn't make sense to go forward.
Tanzina: The method that was being used was lethal injection. I think as many of us lay folk understand it, is that right?
Robert: That's right.
Tanzina: What was the issue with that method and what are the new alternatives to this practice that the Trump administration is proposing?
Robert: Initially the drug protocol that the government was using was a three-drug system. The first drug was supposed to knock out the prisoner and keep him or her unconscious during the execution process is followed by a paralytic agent and then it was followed by potassium chloride, which is a chemical that would stop the heart. There have been a number of botched executions and some of the supplies of the drugs, some of the first drug had become unavailable. The government was searching for different drugs and drugs that the States were using were resulting and extended and painful executions.
Nothing was happening during the first couple of years of the Trump administration, but apparently, they were able to find a supply of a different drug pentobarbital and decided they were going to conduct executions using that single drug. It raised a whole series of problems because that was not what the protocol was before and the government circumvented the usual process for adopting regulations.
Then in July of last year, the government announced that was going to carry out a series of five executions and it selected prisoners who were not part of the original lawsuit. A lot of things happened after that, but essentially it resulted in the executions being halted while courts decided some of the preliminary issues. Then again, in June, the government decided it would try to conduct more executions.
Tanzina: Let's talk a little bit about who's helping facilitate this because there've been a couple of attorneys general under the Trump administration, perhaps, and the one that's most recent as attorney general, Bill Barr, what's his role been in all of this?
Robert: Bill Barr is an advocate of executions and nothing had visibly happened before he became attorney general. Although it's certain that things were going on in the background. The government was looking for suppliers for drugs, it couldn't use the major pharmaceutical companies because they do not participate in executions, but we think that was going on in the background. He also has been in the forefront of a number of policies that have politicized the justice department and this appears to be another one of those.
Tanzina: Robert, what stands out to you about the fact that the Trump administration is trying to execute people during this presidential transition, which really has just a couple of weeks left to go.
Robert: I think what stands out is how historically anomalous this is. No lame-duck president had carried out an execution in more than a century. This administration is attempting to carry out five executions, five more executions, I would say during the transition period, and in all, after they executed Orlando hall, the first century in all, it would have six executions.
That's significant because the most we have ever had in the history of the United States was five executions during a transition period during the presidency of Chester A. Arthur. That goes back to 1884 and 1885 and during that time, the transition period extended until March 4th. Now we're in a period in which it extends only to January 20th. That is historically out of step with everything that we've seen in American history. It's also out of step with what's going on in the United States right now.
This year obviously is a year unlike any other because of the pandemic, but this year there will be fewer executions by the States than any year in the last 37 years and there will be fewer new death sentences imposed in the United States than in any year since the death penalty came back in the country in 1972.
Tanzina: Robert, what does that indicate? Does that indicate a change in terms of how federal officials and state officials view the death penalty or is that how many Americans support the death penalty? What does that mean?
Robert: All of that. Support for the death penalty in the United States in public opinion polls is at the lowest level in 50 years. More Americans think that life without parole is a more appropriate option and fewer than half of Americans think the death penalty is fairly administered. We've also had 10 States abolish the death penalty in the last 15 years and the number of new death sentences imposed has dropped by 90% since the 1990s. What we're seeing out of the federal government is completely contrary to the direction the rest of the country is going.
Tanzina: I wonder if any of the people who remain on this list have any options in terms of clemency or legal options to halt these executions, given that this is happening in a presidential transition.
Robert: There are a number of options, but challenging the execution because it's in the transition period is not likely to succeed, but people like Lisa Montgomery, who is scheduled to be the first woman executed in nearly 70 years, she currently has a stay of execution. The government rescheduled her execution into January. Lisa Montgomery's lawyers were unable to prepare her clemency petition because forced to travel during the pandemic, they contracted serious cases of COVID and so a court granted a stay of execution.
Rather than allowing a meaningful time for clemency petition to take place, this government simply rescheduled her execution for January, and it remains unclear whether she's going to be able to take advantage of the clemency process. Alfred Bourgeois, who was scheduled to be executed on December 11th is almost certainly intellectually disabled, which would make it unconstitutional to carry out his execution. He currently has a stay of execution in place and the government's scheduled his execution anyway.
There are things going on in courts. We're not sure how they're going to play out, but we do know that what the government is doing is completely out of step with what prior governments have done.
Tanzina: Of course, I'd be curious to know, you mentioned Lisa Montgomery's the first woman who would be executed in almost 70 years. I'm wondering whether or not there are still racial discrepancies among those who are scheduled to be executed or who have already been executed by the federal government.
Robert: What's interesting is that federal death row is overwhelmingly composed of defendants of color, but the first set of executions were all White defendants. Part of that we believe was to tamp down on any argument that the executions were racially motivated, but what became very interesting about that is that all of the executions early on and so far, all, but one to date have involved only one has involved a Black victim.
When it comes down to whose lives matter it's clear that in these cases, the lives of White victims matter to the government more. What we're seeing is two of the youngest people, the only two teenagers as offenders to be executed by the federal government are scheduled among this group. They are both African-American and that follows the history that we've seen with both the federal death penalty and state death penalties that if you're a young and Black and a defendant, you are much more likely to be sentenced to death and executed than anybody else.
Tanzina: Robert just finally here there is an incoming administration, Joe Biden's administration will be taking over in the next couple of weeks. Is there anything that the Biden administration can do to prevent any of these federal executions once they've taken office? Biden has said he is against the death penalty and would work to end it.
Robert: There's nothing that the Biden administration can do to halt the currently scheduled executions. Once they take office, they can stop all executions after that. They have the power to grant clemency in individual cases or everybody on the row. It's likely that they will conduct a study of the federal death penalty to do a thorough assessment they want, they say to seek, to repeal the federal death penalty so they can try to do that through statute.
Of course, one of the things that we're likely to see almost immediately is that the government will decide not to seek any more death sentences, so you will see no more cases being prosecuted as capital cases, and they may drop the death penalty in the cases where it's currently charged.
Tanzina: Robert Dunham is the executive director of the Death Penalty Information Center. Robert, thanks for joining us.
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