The Federal Government Plans to Revive the Death Penalty After 16 Years

On March 19, 2003, the federal government executed Louis Jones Jr., a 53-year-old Gulf War veteran who raped and killed a female soldier. Jones—who died by lethal injection at a federal prison near Terre Haute, Indiana—became the last person executed by the federal government. For 16 years, a combination of successful appeals, limited access to lethal injection drugs, and an effective moratorium during the Obama administration prevented any new executions—until now. In an unexpected announcement, Attorney General Bill Barr on Thursday ordered the Justice Department and Bureau of Prisons, the agency that oversees prisons and the federal death row, to resume the practice.

The Justice Department said five executions have been scheduled for December 2019 and early 2020. (The federal government carried out a total of four executions between 1960 and 2019—one in 1964, three between 2001 and 2003.) Daniel Lewis Lee, a member of a white supremacist group who murdered a family of three, is the first to be executed on Dec. 9. The final of the five executions is scheduled for Jan. 15. All of the executions will take place at the facility in Terre Haute, and the Department of Justice says additional executions will be scheduled “at a later date.”

Mounting difficulty in obtaining lethal injection drugs and uncertainty over the constitutionality of new drug combinations played a part in the lapse in federal executions since 2003. President Barack Obama’s Justice Department also ordered a review of the death penalty following a botched execution in Oklahoma in 2014. Trump’s DOJ said Thursday that the review has been completed and executions can resume, though no one knows what the results of that review are.

The federal government, the DOJ said, will adopt a new lethal injection protocol that replaces a long-used, three-drug cocktail that was upheld by the Supreme Court in a 2008 case, Base v. Rees, but is now difficult to source. The combination of drugs was used in the majority of executions in the United States until a series of events in 2009 and 2010 made it increasingly rare. Domestic and international pharmaceutical suppliers stopped providing sodium thiopental, the anesthetic used as the first step in the three-drug cocktail. A 2012 court injunction also forced the Food and Drug Administration to block importation of the drug from abroad because it was being used for unapproved purposes. The sodium thiopental shortage forced some states to drop the three-drug cocktail altogether in favor of other drugs. Some temporarily halted executions all together. Others replaced thiopental as the first drug in the cocktail with another controversial sedative, midazolam, which has also come under intense scrutiny and legal challenges because of botched executions in Ohio, Arizona, and Oklahoma.

Instead of the three-drug protocol, the federal government plans to use pentobarbital, a barbiturate used often in veterinary medicine and physician-assisted suicides. Since 2010, 14 states have used pentobarbital in more than 200 executions, according to the DOJ. But just how states obtain the drug has been criticized repeatedly and shrouded in secrecy. Texas, Missouri, and Georgia turned to compounding pharmacies—unregulated by the FDA and shielded from public identification—because licensed manufacturers stopped supplying pentobarbital for executions. The manufacturer of pentobarbital even requires its distributors to sign agreements that they won’t give the drugs to states that perform executions.

The DOJ says its protocol will “closely mirror” one currently in use in Texas, Missouri, and Georgia. Texas currently has 27 doses of pentobarbital in stock, more than enough for its scheduled executions. But Texas had done a better than other states at maintaining stock, and that’s only because it’s repeatedly extended expiration dates past the suggested shelf life. That’s on top of criticisms that compounded pentobarbital already degrades more rapidly. Experts say that could reduce the drug’s potency, making death more painful, and attorneys claim two executions in 2018 were botched because of aged drugs. (The DOJ has not responded to questions about how it will obtain the pentobarbital it plans to use.)

President Donald Trump has been an enthusiastic proponent of the death penalty, even going as far as advocating for the death sentence in individual cases. He also said during the 2016 campaign he’d issue an executive order requiring the death sentence for anyone found guilty of killing a police officer. (He never did, and he doesn’t have the authority to do so.) Even though support has declined since the 1990s, a Gallup poll in October 2018 found that 56 percent of Americans still favor the death penalty for murder.*

The administration’s surprise decision to begin executions again is sure to place the death penalty back at the center of the national debate. Just this week, Joe Biden called for an elimination of the federal death penalty even though he’s supported it for years. Only one Democratic candidate for president, according to the Associated Press, has publicly supported preserving the death penalty. That’s Montana Gov. Steve Bullock, who has said he’d only leave it as an option for major crimes like terrorism. Top 2020 Democrats are already calling the decision “immoral,” “cruel,” and “deeply flawed.”