American presidency: Revival of federal death penalty is five steps backwards for mankind

Michael Goldhaber, IBA US Correspondent

Donald Trump has been an outspoken proponent of capital punishment since he called for the execution of the five black teens falsely accused of raping the ‘Central Park jogger’ in 1989. Last year, the President called for executing drug dealers, and proudly gave credit for the idea to China’s Xi Jinping. The ‘Death Row Five’ of 2019 appear to be chosen, at least in part, for political messaging. All killed children in gruesome ways. The first to be executed is a white nationalist, and none are black or Latino. Of the 57 men who will remain on federal death row, a majority are black or Latino.

The Attorney General justified his move with reference to the rule of law. 'The Justice Department upholds the rule of law,’ he proclaimed, ‘and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.'

Yet the rule of law’s hallmark is predictability, and US capital punishment is anything but predictable. In 1972, the Supreme Court found it unconstitutionally arbitrary. In 1976, the Court gave states the opportunity to design legal standards that would guide discretion.

After 43 years, scholars agree that the experiment has failed – for the death penalty is as arbitrary as ever. Only about one out of every 400 murderers is executed, with wild geographic and racial disparities.

The US death penalty is overwhelmingly an urban and 80 per cent a Southern phenomenon, handed down disproportionately in counties with more black residents and white murder victims. Texas accounts for a third of the 1,500 US executions since 1976. The rates are driven by the ideology of each county’s District Attorney, as well as the resources available to each side. (Capital trials are pricy.)

The strongest predictor of a dip in executions, according to a state-by-state study by the social scientists Brandon Garrett and Ankur Desai, is improved funding for capital defence. Of course, those poorly represented may be wrongly convicted. No fewer than 160 inmates on American death rows have been proved innocent.

Congress enacted the modern federal death penalty in 1988. The bipartisan 1994 crime bill, then championed by Senator Joe Biden, made it available for 60 federal crimes. The second Bush Justice Department targeted defendants in anti-death penalty localities for federal death sentences. (One man to be executed in December was plucked from the jurisdiction of the Navajo nation.) Nonetheless, the federal government has executed only 3 men since resurrecting the penalty.

As murder rates plummeted this century, the movement for abolishing the US death penalty had their eyes on the prize. Their longtime strategy, articulated by Tony Amsterdam of the National Association for the Advancement of Colored People, was ‘to change the momentum so that we had inertia on our side’. Until this July, momentum was moving their way.

The number of US death sentences fell from 315 in 1996 to 42 in 2018, according to the Death Penalty Information Center. The number of executions dropped from 98 in 1999 to 25 in 2018, in only 8 states. At their annual peak, executions were scattered around 20 states. Nearly 90 percent of last year’s executions – and all ten in the first half of this year – occurred in Texas, Tennessee, Alabama, Georgia or Florida.

Since 2007, thirteen states have either abolished the death penalty or imposed a moratorium. California, by declaring a moratorium this March, gave a reprieve to 737 capital inmates. Whereas the Supreme Court ruling of 1972 provoked a pro-death backlash, the new trend toward abolition has been met with a shrug. US support for the death penalty, according to Pew Research, plunged from 80 per cent in 1996 to 49 per cent in 2016 (before inching up to 54 per cent in 2018). Capital punishment is now illegal in 21 states. Another four states have official moratoriums in place, and another six have executed no one for at least a decade.

As recently as 2016, the debate among death penalty scholars was over how it would end. ‘Either we’d have to wait for demographic change,’ says Mandery, ‘or it would be done by the Supreme Court.’ So the Senate’s refusal in 2015 to seat a fifth Democratic justice was far more consequential than President Trump’s revival of federal execution. If the Senate had let President Obama pick that justice, says Mandery, ‘there was a significant chance that the Court would have abolished the death penalty’.

History took a different course, and so did the Court’s jurisprudence. This term’s Bucklew v Precythe was a 5-4 case that followed party lines. The majority opinion was written by Justice Neil Gorsuch, whom President Trump appointed to the seat that was left open by Senate Republicans. Gorsuch was joined by Justice Brett Kavanaugh, who tipped the Court’s balance last autumn, when he replaced the moderate Republican Justice Anthony Kennedy.

Justice Gorsuch refused to delay the execution of a Muslim man who requested an imam to be present, because, he pointedly wrote, stays of execution should be ‘the extreme exception.’ Then he ruled that an inmate with a rare medical condition may be executed by a method that would result in him slowly suffocating on his own blood. He reasoned that a harsh method of execution is permitted so long as it does not ‘cruelly superadd pain.’ Critics say that seems a hard standard to fail, short of overt sadism.

For sixty years the Court defined inhumane punishment under the Eighth Amendment by looking to the ‘evolving standards of civilised society’. It was in this tradition that Justice Kennedy joined the liberal bloc in a trio of death penalty decisions between 2002 and 2008 – banning the execution of children, non-murderers, and the intellectually disabled. These decisions dared to acknowledge that values evolve, and even that legal sources outside the US are worth consulting.

The new majority seems to favour an originalist reading of what qualified as ‘cruel and unusual’ in 1789. Court watchers understandably worry that this logic may jeopardise the three abolitionist death penalty precedents of the 2000s.