Last summer, Attorney General William Barr ordered federal prisons to resume executions. Earlier this week, the Department of Justice carried through on Barr’s order, executing the first federal prisoner in 17 years. Then, it executed another. There are now 60 people on federal death row, and I don’t know how many of them Donald Trump and Bill Barr will try to have killed before they hopefully lose power over life and death on January 20, 2021. Barr has already ordered the Bureau of Prisons to schedule two more executions.
In normal times, if a president with a 40 percent approval rating tried to rush through two executions a week after he commuted the sentence of one of his cronies, the press would be all over the scandal. In the Trump era, the administration’s policy of letting hundreds of thousands of people die from Covid-19 is the bigger human rights outrage.
Executions are back on the table because Barr found a new drug to kill people with; also, Trump thinks that killing people makes him look strong. While the death penalty was suspended briefly during the early 1970s, it was reinstated in 1976, when the Supreme Court ruled that executing people does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. State governments do most of the killing, however. The federal government had “only” killed three people since 1988. Executing two people in a week constitutes a killing “spree” by the Trump administration.
Since conservative justices have decided that the base act of killing people is a good and normal thing for the state to do, the modern fight against the death penalty has tried to get courts to rule that the specific methods of execution are cruel and unusual. That’s how we’ve moved from firing squads to frying people to, now, strapping people to gurneys and suffocating them with drugs while sedatives mask their ability to express pain.
Since 2010, it has been harder and harder for governments to carry out the death penalty, because they can’t get hold of the approved drugs to do the killing. The makers of drugs used in executions have taken a moral stand and refused to sell their drugs to prisons. Every time the state is forced to find a different drug with which to kill people is an opportunity for another court battle; it’s another chance to convince a court to rule that the particular new method of execution is cruel and unusual.
Unfortunately, the Supreme Court now employs five conservative justices who are eager to see the killings resume. They don’t want to hear arguments that this drug or that cocktail is cruel and unnecessarily painful. They don’t want to be bothered with last-minute appeals from death row inmates. In a 2019 opinion, Justice Neil Gorsuch wrote: “The Eighth Amendment forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death.” And that about sums up where the conservatives on the court are when it comes to killing people. Their message is clear: Just do it.
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The callous attitude of Gorsuch and his fellow conservatives is the reason Daniel Lee and Wesley Purkey are now dead. Both men appealed, unsuccessfully, to the court for stays of execution; both men were killed with a lethal dose of pentobarbital, a drug that is supposed to be used as a sedative during surgeries. Texas was the first state to begin using pentobarbital as a substitute killing drug when the other death penalty drugs were unavailable, and it has since been adopted by more than a dozen states. Now, the federal government is using it to execute people.
Pentobarbital is far from painless. On Slate, Mark Joseph Stern writes:
Medical professionals with expertise in the drug’s effects testified that “the majority of inmates executed via pentobarbital injection suffered flash pulmonary edema during the procedure.” This condition “produces sensations of drowning and asphyxiation” resulting in “extreme pain, terror and panic.” One expert declared that it is a “virtual medical certainty that most, if not all, prisoners will experience excruciating suffering” when killed with pentobarbital.
In appealing this method of death as a violation of the Eighth Amendment, Lee asked to be given an additional drug, like morphine, to relieve the pain of pentobarbital. Both the district court and the US Court of Appeals for the D.C. Circuit granted Lee a stay in his execution.
But the Supreme Court rejected the Lee’s argument out of hand in a three-page, unsigned opinion. And it did so in the middle of the night, over the dissent of all four liberal justices, releasing the order at 2 am. Lee was dead by morning.
In lauding the execution, Bill Barr said, “We owe it to the victims and their families to carry forward the sentence.” Lee was convicted and sentenced to death for his role in a triple homicide (though the alleged “ringleader” of the slaughter received only life in prison). But it is worth pointing out that the prosecutor who tried Lee and the judge who oversaw his trial, as well as the victims’ family, all opposed putting Lee to death. Barr and the Supreme Court were so eager to get on with the killing that the prison didn’t inform the family, or Lee’s lawyer, that Lee was being killed.
Wesley Purkey’s execution was even more wanton than Lee’s. Purkey was convicted of kidnapping, raping, and murdering a 16-year-old girl in 1998. At the time of his execution, he was a 68-year-old man suffering from Alzheimer’s disease. Purkey was executed 22 years after his crime because the Supreme Court summarily rejected his appeal, and he died without knowing why.
Assuming these men were guilty of the crimes for which they were convicted (and given that, since 1973, 165 people have been released from death row because they were found to be innocent, their guilt is a bit of an assumption), I can’t say I’m sorry these men are dead. I’m not sure that I believe an invisible sky deity should have a moral monopoly on vengeance.
But I am sure that state-sanctioned murder of unarmed prisoners is wrong. I am sure that killing 68-year-olds who can’t remember the crime they committed 22 years ago serves no goal of justice or deterrence. I am sure that “excruciating suffering” is a violation of the Constitution and basic humanity. I am sure that the death penalty needs to be abolished because our criminal justice system is too broken, too arbitrary, and too racist to mete out this punishment fairly.
Conservative justices are no longer willing to listen to those legal arguments. They no longer want to hear about pain, suffering, or justice. They just want to clear the way so that Barr and Trump can sate their bloodlust. By dismissing all the legal and procedural arguments, they’ve made the death penalty a moral issue instead of a constitutional issue—and cast their lots on the side of barbarism.
Judge not lest ye be judged, Neil.