Lame Duck Executions

There were policies that got a rise out of the angry crowd, like keeping “illegals” from “shithole countries” away from our borders. But there was no screaming about the failure to execute enough people. If it didn’t happen, no one would care, no one would wrap themselves in a MAGA flag to argue whether Trump was bigger than Jesus. Executions just weren’t on the radar. So what happened?

Last week, the Justice Department announced that it plans to execute three more inmates on federal death row. If the administration does so, along with two other executions already scheduled, it will have put 13 prisoners to death since July, marking one of the deadliest periods in the history of federal capital punishment since at least 1927, according to data from the Federal Bureau of Prisons.

It had been decades since the feds executed anyone. Executions had been phasing out on their own in most places, the bloodlust waning in light of recognition that our legal system was a little too prone to error to trust it to decide to take a life. Then there was the acceptance that it just wasn’t needed, as it served no better purpose than life in prison, and that it was fundamentally wrong for the government to be a killer anymore than anyone else.

States were still killing people, but execution protocols were problems. They didn’t work as well, meaning humanely, as they were supposed to, and the punishment was death, not torturous pain until death. Now it seems the feds are quietly working on fixing that problem as well.

The rule, reported earlier by ProPublica, stipulates that the federal government may conduct executions by lethal injection “or by any other manner prescribed by the law of the state in which the sentence was imposed or which has been designated by a court in accordance with” the law that governs implementation of the death sentence. It will go into effect 30 days after its scheduled publication on Friday, before some of the executions are set to take place.

Over the years, a variety of methods have been used to execute prisoners. Hanging. Firing squad. Gas chamber. Electric chair. Lethal injection, which has been both favored as the least horrible means of death and troubling as failing to be as “humane” as was claimed. As drugs for the three-drug-cocktail became harder to find, the feds decided instead to go with a one drug protocol. With this new reg, it will open the possibilities to other, less “complicated” methods of execution as states may use. As far as I know, the guillotine is not available in any state, though that could change.

What makes all this so bizarre is that the feds have pretty much let go of any pressing need to execute. There were no cries from the public to do so, no demands for “justice” that caught traction and pushed the government to get back into the business of killin’, and yet it’s happening. The next administration will have no interest in executing people, but the current one has suddenly found itself in a mad rush to kill as many prisoners as possible. Why?

It’s not as if Trump made executions a selling point. It’s not as if his supporters adore him for it. Since his only motivations are self-enrichment and self-aggrandizement, and executions don’t fit with his paradigm of things to do if they fail to provide him with any personal benefit, what pushes this mad rush to kill? Is this a Barr issue, a pet peeve of Bill Barr that people condemned to death need to be killed before he’s escorted out of the building?

And what’s with the establishment of new regs, during this lame duck period when focus should be on transition rather than putting another five people to death? To the extent there’s method to the madness, this will allow the government to employ means of execution that moot questions of the efficacy of legal injection. Challenging the means of execution has become the primary means of slowing down, if not stymieing, execution protocols, even if the alternative is the slow death penalty rather than the fast one.

Steve Vladeck, a law professor at the University of Texas, noted that Mr. Biden could reverse the rule, but said that it represented a “symbolic” and “deeply practical” step by the department to carry out its five scheduled executions.

“It’s a pretty gruesome way to go out,” he said. “This is basically the attorney general doubling down on, you know, sort of making it possible to execute as many federal prisoners as he can before his tenure is over.”

As there won’t be much time to avail itself of old school methods of execution, this shift of opening up alternatives that had been rejected, and largely unused, for decades is hard to explain. Does Barr just want to make sure that an alternative will be available to execute people in the future, just in case another administration takes office some day with some deep desire to put people to death, and shouldn’t find itself hampered by legal challenges?

Robert Dunham, the executive director of the Death Penalty Information Center, expected that the new rule would most likely result in fewer and less complicated legal challenges to executions, but that it would quickly become immaterial under an administration that does not seek to execute inmates.

“It tells us more about how much the administration wants to kill prisoners than it does about any real correctional need,” he said.

Just as there is no burning issue about the government’s failure to execute enough people, there is unlikely to be any big issue in the future. Capital punishment is a travesty which is slowly dying of its own accord. Not completely and not fast enough, and when a defendant is convicted of committing crimes so heinous, so horrible, that passions are ironically stirred to more killing, it comes back on the radar.

But these executions? These aren’t big issues of burning public concern, and most people have no idea that during the final hours of the Trump administration, Bill Barr is in a huge rush to kill, and to eliminate challenges to killing, even if it means bringing back the old gruesome ways.