Death Penalty in U.S. Was Heading Toward Extinction Until Trump


(Bloomberg) -- The death penalty, which only recently had appeared headed for extinction in the U.S., may be poised for a resurgence.

Attorney General William Barr said Thursday the federal government will resume executions in December after a 16-year hiatus. The announcement followed a Supreme Court term that indicated an increasing receptiveness toward capital punishment now that President Donald Trump’s two appointees are on the bench.

Death Penalty in U.S. Was Heading Toward Extinction Until Trump

In 2015 the death penalty was under so much pressure that then-Justice Antonin Scalia said he “wouldn’t be surprised” if his colleagues outlawed it. Scalia, a conservative who viewed the death penalty as constitutional, died the following year. Around the same time, a top American Civil Liberties Union official said he too saw momentum toward a ruling ending capital punishment nationwide.

Those comments made sense at the time. Executions had been declining steadily since 1999, when a modern-day record 98 people were put to death. Only 20 people were executed in 2016, the lowest number since 1991, according to the Death Penalty Information Center, which tracks capital punishment.

That trend drew fuel from multiple sources. Public support had waned as the increased use of DNA evidence underscored the risk of wrongful convictions. In all, 21 states have abolished the death penalty, seven of them in the last decade, according to the center. Four other states have a moratorium imposed by the governor.

Meanwhile, botched executions drew attention to the possibility that inmates might suffer severe pain if lethal-injection drugs didn’t work as planned. Pharmaceutical companies blocked the use of their products for executions, making it harder for officials to get the drugs they needed.

And the Supreme Court imposed limits, outlawing executions of intellectually disabled people in 2002, juveniles in 2005 and child rapists in 2008.

“Resort to the penalty must be reserved for the worst of crimes and limited in its instances of application,” Justice Anthony Kennedy wrote for the court in the 2008 ruling.

But all that was before Trump became president. His 2016 election let him fill Scalia’s seat with Justice Neil Gorsuch and then replace the retiring Kennedy with Justice Brett Kavanaugh.

The two were in the majority this year when the court voted 5-4 to let Missouri give a lethal injection to a man who said his rare medical condition meant he would probably choke on his own blood. Writing for the court, Gorsuch rejected contentions that the injection would violate the Eighth Amendment ban on ”cruel and unusual” punishment.

“The Eighth Amendment does not guarantee a prisoner a painless death -- something that, of course, isn’t guaranteed to many people, including most victims of capital crimes,” Gorsuch wrote.

‘Unjustified Delay’

That opinion was one of several in the term that indicated the court’s five conservatives would be more resistant to last-minute filings by inmates than the court had been previously.

“Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay,” Gorsuch wrote. “Last-minute stays should be the extreme exception, not the norm.”

In making his announcement Thursday, Barr said lethal injection dates had been set for five convicted murders, starting with Daniel Lewis Lee on Dec. 9. Lee was convicted of the 1998 killing an Arkansas family of three, including an 8-year-old girl, as part of what prosecutors said was a rampage geared toward setting up a whites-only nation.

Death Penalty in U.S. Was Heading Toward Extinction Until Trump

“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,” Barr said in a statement.

Only three people have been executed for federal crimes since the U.S. death penalty was reinstated in 1988. The last federal execution took place in 2003. In the states, 10 people have been executed this year, including three in Texas and three in Alabama.

California Senator Dianne Feinstein, the top Democrat on the Judiciary Committee and a former supporter of capital punishment, called the Justice Department decision “wrong.”

“The federal government should be leading the effort to end this brutal and often cruel punishment, not advocating for its return,” she said. “It’s time we evolve and put this terrible practice behind us.”

©2019 Bloomberg L.P.

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