Jurisprudence

The Return of Federal Executions

In a rare late-night decision, the Supreme Court approved the first one in 17 years.

A death penalty abolitionist wearing a T-shirt that says "NO MORE KILLING" protests in front of the Supreme Court
Abraham Bonowitz of Columbus, Ohio, joins fellow members of the Abolitionist Action Committee during an annual protest and hunger strike against the death penalty outside the Supreme Court in Washington on July 1, 2019. Chip Somodevilla/Getty Images

Earlier this week, the Supreme Court did something it does very rarely: It issued a major opinion, a life-or-death decision, at 2 in the morning. Daniel Lee, a man on death row, had asked to receive a dose of an opioid before his lethal injection to mitigate any pain he might suffer in the process. It didn’t seem like a big ask. But the Department of Justice denied his request, and on Tuesday the five conservative justices on the Supreme Court issued an order allowing the execution to proceed. Lee, who had been strapped to a gurney for four hours awaiting the decision, was put to death at around 8 a.m. Tuesday.

This was the culmination of months of planning on the part of the Justice Department. When Attorney General William Barr took office, he vowed to resume federal executions—Lee’s was the first one in 17 years. On Thursday’s episode of What Next, I spoke with Slate’s Mark Joseph Stern about what this execution means for the future of the death penalty.

Mary Harris: It stood out to me that in this ruling from the Supreme Court that allowed the execution to move forward, no one authored it. It was just an opinion without someone standing behind it. That’s pretty rare, right?

Mark Joseph Stern: It is relatively rare, but it is increasingly common for these late-night decisions that the court hands down that could cause public backlash. For instance, the instantly notorious decision that forced Wisconsin voters to either go to the polls in person or forfeit their right to vote was also unsigned. No justice wanted to put their name to it. I think what’s going on behind the scenes is the five conservatives convene and they all agree, but no one justice wants to author the opinion, and all of this is happening on a super-accelerated schedule. They just want to get this out there in the world, and the only reason we know which justices joined it is because the other justices, the liberals, dissent. And when they dissent, they do so by name, so you have to actually deduce which justices constituted the five in the majority here.

Daniel Lee was on death row for triple murder. And the facts around his case are horrific. Back in 1996, Lee killed two adults and an 8-year-old child while he and a co-conspirator were looking for guns and money to fund their white supremacist organization.

Obviously this was a terrible crime, and I don’t want to downplay the details here. But what seemed to come out at trial was that Lee was not the ringleader of this plan. Lee’s co-conspirator was the ringleader. Basically, Lee went along with it, but at trial a fair amount of evidence came out that it wasn’t even Lee who killed the child, that it was his co-conspirator, a guy named Chevie Kehoe. Now, here’s another interesting fact: Chevie Kehoe is still alive, and he will remain alive because he was sentenced to life in prison, while Lee was sentenced to death.

And it’s notable that both the judge in the case and the prosecutor didn’t think that Daniel Lee’s sentence was fair. The judge even wrote a little bit of a mea culpa, like, Hey, there were some misunderstandings here, and this is just my opinion, but this doesn’t seem to make sense.

Right, the judge later said, essentially, “I’m sorry,” that this was a bad sentence. And the federal prosecutors at the time of the trial asked the Justice Department to reduce the requested sentence to life in prison. The Justice Department refused.

All of these side notes help to explain how the death penalty is just so incredibly arbitrary in the way that it is imposed, in the way that it is meted out. There are murder trials in this country all the time where people are convicted of heinous crimes and brutal acts, and those people may be tried in states that still have the death penalty, but they are sentenced quite often to life in prison. The sentence of death is so random that it is often compared to getting struck by lightning.

It is unclear why occasionally judges and juries decide that death is appropriate. One reason is certainly racism. We have a lot of statistics that show that race factors in here, especially the race of the victim. Black people are more likely to get the death penalty. People who kill white people are more likely to get the death penalty. But there’s also just this overall arbitrariness where it seems to come down to the whims of the jury. It’s very difficult to predict when this sentence will be handed down. And so that makes you wonder: How is this really serving as retribution, and how is this serving as a deterrent? How is this persuading other people not to commit these crimes, when the odds of getting death are really low, and it seems really random, and frankly it seems that if you can afford a good lawyer, you’re not going to get a sentence of death? It is people with bad public defenders who often wind up with these sentences, which means it wasn’t really about the heinousness of the crime. It was about the quality of the defense.

You’re raising this really important question, which is who is the death penalty for? Bill Barr tried to answer that question in one of his statements about this execution, where he said the reason why we needed to do this was because the family of the victims needed justice. But the family of the victims had been really clear that they didn’t support Daniel Lee’s execution. The mother of one of the victims, who’s a Trump supporter, recorded a video saying, I don’t believe that this man should be executed.

Right. These family members of the victims do not have a political agenda and cannot plausibly be accused of that. We sometimes see prosecutors trying to dismiss families of victims who oppose the death penalty as basically just bleeding hearts who are trying to push their agenda. That is obviously not the case here because this particular family member is a staunch supporter of Donald Trump. She said, I don’t want this, do not do it in my name. She actually tried to halt the execution in an earlier lawsuit because she felt that if she couldn’t stop it, she was at least obligated to attend. But she could not attend during COVID when it was basically impossible to fly, especially for an elderly woman. And so she said, Please, Department of Justice, just delay this execution so that I can at least be there. And the Department of Justice said no and fought her successfully in court.

I think the Department of Justice, like virtually all prosecutors, has no use for victims and victims’ families who don’t fit into the victim-industrial complex, by which I mean the entire structure by which victims are lifted up as voices for harsh, draconian criminal laws. If you ever go to some kind of press conference where law enforcement is opposing criminal justice reforms, you can assure yourself that there will be victims and victims’ family members there who will stand up and say, My mother was murdered and I don’t want the killer going free, or My sister was assaulted and I don’t want more people to suffer that same fate. And who has the heart to tell those victims “you’ve been misled”? These draconian sentences are not deterring crime. They are not stopping violence. They are not helping. It is very difficult to look victims in the face and tell them that, and prosecutors know it. And so they exploit these victims and they rely on them to provide humane cover for fundamentally inhumane policies. And that’s what Barr tried to do here.

On Wednesday afternoon, the Supreme Court allowed another execution to move forward, with the four liberal justices opposed once again. And this is one of three executions Barr wanted to perform in the coming weeks.

If you go read what the Supreme Court said in the wee hours of Tuesday morning, it looks like the Justice Department has a trump card here: Every time an execution is blocked, the Justice Department can text the five conservatives on the Supreme Court and say, Hey, give us what we want. And the justices will. They may not sign their name to it, they might do it in the dark of night, but they will give the Justice Department authorization. And so I think we’re going to see more executions soon. But I don’t think it will become the new normal.

Why not?

Because even though Barr has tried to accelerate this, and even though the Supreme Court has helped him to speed up these executions, each one is still a massive undertaking, a huge burden, a drain on the time and energy and resources of the Justice Department and of different U.S. attorney’s offices around the country. And it’s notable that Barr did not release a list of 20 or 30 or 40 people. He set his sights pretty low, and he decided that he was only going to pick a handful of people to use as examples. It is very clear that these people are being used as examples. He is not going to go down the list and execute everyone who has been sentenced to death.

I think that Barr wants to normalize this. He just cannot do it. There are too many obstacles, there are too many roadblocks, and it’s too dirty of a business for him to make it just another normal part of American life, the way he so obviously craves.

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