Late last week, Attorney General William Barr announced that the federal government, after a hiatus of more than a decade and a half, will start executing prisoners again in December. In the 16 years since the last federal execution, those sitting on the federal death row, even those who had exhausted their appeals, remained imprisoned in the unit for the condemned. Still, under both George W. Bush and Barack Obama, the federal government sought, and sometimes got, new death sentences—even in states where lawmakers have rejected capital punishment.
Barr’s abrupt decision to resume federal executions looks like one more stunt to distract Americans from the misdeeds of his boss, President Donald Trump. But it’s also a statement about the persistence of the death penalty itself, despite everything wrong with it—its cost, its failure to deter crime, the long list of death-row inmates who turned out to be innocent.
I am a defense attorney in Chicago, and I specialize in capital cases. When I mention this to other Illinois residents, many express surprise that there are still death-penalty prosecutions in our state, which has led a nationwide retreat from capital punishment. First, we kept getting the wrong guy; since 1977, a state that executed 12 people has exonerated 19 from death row. In 1999, Governor George Ryan declared a moratorium on executions, and in 2003 emptied death row by commuting most sentences to life without parole. Finally, in 2011, our legislature abolished death as a punishment.
What many don’t realize, though, is that the death penalty is still available through the federal government. Murder and other violent offenses are usually prosecuted by states. The Justice Department’s own guidelines advise against prosecuting what is essentially “state crime,” as states themselves can do that. Yet as long as a U.S. attorney can find a federal “hook,” any state crime can be prosecuted by the federal government. If a defendant is a gang member accused of a murder, and the gang dealt drugs that at some point crossed state lines, that is sufficient to allow a federal prosecution.
Since Trump took office, those of us in the capital-defense community have seen a sharp spike in capital prosecutions of state crimes by the federal government, and there is a shortage of counsel qualified to represent defendants in death-penalty cases. States that are perfectly capable of prosecuting a gang-related murder are having jurisdiction taken from them by the federal government. Late last year, I was appointed to represent a young man facing the death penalty who had been in state court on similar charges. He was aware he was being transferred to federal court, but was shocked to learn, when I met him for the first time in lockup just before he was formally charged, that he was about to face capital charges. He wept. This was also news to his mother, who collapsed in my arms. She said, between sobs, that she thought we no longer had the death penalty in Illinois.
Under these circumstances, the persistence of capital punishment is particularly disturbing when study after study has found that it costs more to prosecute a death case than an imprisonment case, that the death penalty is not a deterrent to crime, that the federal government disproportionately seeks death against black and brown people, and that more mistakes are made in capital cases than in most others.
Proponents of the death penalty insist that capital cases benefit from extra safeguards. In fact, there are many reasons death cases are unusually subject to errors. The crimes are often horrifying, taxing a jury’s ability to presume innocence—which even in much lesser cases does not come naturally to most of us. For example, if there have been some break-ins in your neighborhood and you read that the police have arrested someone, you don’t say, Let’s wait and see if he’s guilty. You say, I’m glad they caught the guy.
A jury in a death-penalty case gets an extra push in the prosecution’s direction. Anyone who opposes the death penalty is not allowed to sit on the jury at all. The fact that, at the outset of a death-penalty case, the judge is asking potential jurors about punishment makes the trial seem like a mere technicality. Because the federal government, in proceeding against capital defendants, routinely charges them with some form of conspiracy associated with a gang or political group, prosecutors are free to introduce many acts and crimes by other people that the jury may consider against the person facing death. Much of this evidence comes from alleged co-conspirators who are getting reduced sentences for their testimony. Thus, in federal court, hearsay from a witness who has something to gain often forms the majority of the evidence against the person capitally charged. Add up all these factors, and the possibility of wrongful convictions and wrongful sentences is much worse in a federal death prosecution than anywhere else.
What does this have to do with Barr’s recent actions? Support for the death penalty requires no evidence that it is administered fairly. But it also is in perfect alignment with Trump’s predilections. He infamously called for, in a full-page ad, the execution of the Central Park Five, who were later exonerated by DNA evidence and the confession of the actual rapist. Despite this, he has never withdrawn his remarks or apologized in any way. That case says a lot about the death penalty more generally: When the people in power just want to make a statement, it doesn’t matter what the facts show.