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For Years, the Federal Death Penalty Has Been a Thing of the Past. That’s Where It Should Stay.

Attorney General Barr’s justification for resuming capital punishment is everything Justice Brennan feared.

August 7, 2019

“From this day forward,” wrote Supreme Court Justice Harry Blackmun in 1994, “I no longer shall tinker with the machinery of death.” With those words, Blackmun announced that he could no longer square the death penalty with the Constitution and would oppose it at every turn.

In the ensuing years, no federal laws changed, but there have been no federal executions since 2003. The “machinery of death,” at least at the federal level, remained still.

That changed in late July, when Attorney General William Barr announced that the U.S. government would resume executing federal prisoners. Barr named five men who would be the first to die, grimly noting that “additional executions will be scheduled at a later date.”

Ironically, Barr’s announcement underscores why the federal death penalty deserves to remain a thing of the past. His arbitrary decision to fast-track the deaths of five men is capricious and cruel, a case of the criminal justice system at its worst just when the stakes matter most.

These are not new concerns. In fact, they’re the very arguments that Supreme Court Justice William Brennan himself raised throughout his time on the bench, stating more than 40 years ago that the death penalty was inflicted so rarely that it was inherently arbitrary.

“When the punishment of death is inflicted in a trivial number of the cases in which it is legally available,” he wrote in Furman v. Georgia, “the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system.”

Brennan also believed that this arbitrariness disguised racial discrimination: “murder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims,” he wrote in McClesky v. Kemp. In one of his last public appearances, Brennan made his feelings quite clear, going out of his way to denounce the death penalty as “barbaric and inhuman” — and unconstitutional.

These concerns are clearly on display in Barr’s announcement. No doubt the five men named in his press release — one a white supremacist, all of them murderers — deserve punishment. But there’s little reason offered why these men were targeted, aside from Barr’s subjective view of the severity of their crimes. Indeed, the selection is worse than random: the targets were likely chosen because their crimes would inflame the public and offer the Trump administration political cover for a controversial policy change. That’s worse than the “lottery” Brennan feared.

The abrupt nature of Barr’s decision underscores this point: if the machinery of capital punishment can be restarted so quickly, so too can it be ground to a halt by a future administration. That means these five men could be the first and last to die for another 16 years, all because the attorney general believed their deaths would make an adequate political statement.

History has vindicated Brennan’s concerns about racial discrimination, too. According to the American Civil Liberties Union, people of color represent 55 percent of individuals on death row. More recent research in North Carolina and California confirm what we’ve known since at least 1990: race helps decide who faces death and who doesn’t. People who have killed white victims are significantly more likely to face the death penalty. This research throws into doubt the very idea that we can fairly administer the death penalty in this country. But it is glossed over — indeed, reinforced — by Barr’s decision.

The attorney general’s decision also flies in the face of public opinion, which has turned against capital punishment. Mere months ago, Justice Stephen Breyer became the most recent member of the Supreme Court to clearly denounce the death penalty. Last year, Washington State became the 20th state to abolish it.

Wrongful convictions, we now know, are a grim reality in our imperfect justice system, creating mistakes that capital punishment can turn fatal. And opposition to the death penalty is at record highs. While it still commands majority support, 41 percent of Americans now oppose the death penalty, the highest number since 1972. Nearly half believe, correctly, that it’s imposed unfairly.

The public’s turn against capital punishment mirrors its broader turn against mass incarceration. After decades of growth, the prison population has stopped increasing. It’s now declining, thanks to policy changes, as Americans come to realize that locking up so many of our fellow citizens is both undesirable and unsustainable.

Fully 71 percent of Americans support reducing the prison population. Four years ago, political leaders spoke the phrase “mass incarceration” cautiously, and offered incremental (but important) solutions. Today, the next generation of leaders demands immediate, radical change. The Senate answered public pressure with a modest reform package, but as civil rights historians will know, these things always start small.

The fight against capital punishment is part of that broader move toward reason in the American criminal justice system. Last month’s decision jeopardizes the lives of five people out of 2.1 million Americans behind bars today, many of them unjustifiably. Every one of them deserves dignity and justice — including the five men singled out for what reads as a political ploy by the Trump administration.

“The calculated killing of a human being by the state involves, by its very nature, an absolute denial of the executed person’s humanity,” Brennan said in a speech in 1985. Barr’s sudden declaration proves how right he was.

With research support from Ana De Luca, Ruth Sangree, and Julia Udell.

(Image: California Dept. of Corrections and Rehabilitation / Getty)