Kaid Ray-Tipton, MPA Staff Writer, Brief Policy Perspectives

Origins of American Capital Punishment

The United States has a long and largely undocumented history of capital punishment. The origin of American executions lies within racialized terror that is ingrained in the country’s history. While many of these government-sponsored killings happened at the local level, the federal government moved towards institutionalizing a nationalized death penalty when Congress passed the Three Prisons Act in 1891, which established the Federal Prison System. To reform the overcrowded conditions in the prisons, the United States Department of Justice (DOJ) created the Federal Bureau of Prisons (BOP) almost 40 years later.

Just before the approval of the new agency, the United States federal government authorized the first execution of an American resident in 1929. James Alderman, who was executed by the United States Coast Guard, was the first to be killed. In total, the BOP  carried out capital punishment on 37 people. The methods of execution included hanging, electrocution, the gas chamber, and lethal injection. At a time when lynching was prevalent, the United States federal government co-opted the method of killing. At a time when the United States condemned Nazi Germany for utilizing gas chambers, the BOP approved cyanide for use in executions. The BOP executions continued until the United States Supreme Court heard Furman v. Georgia in 1972. As a result of this case, the BOP implemented a moratorium on the grounds that the death penalty violated the Eighth and Fourteenth Amendments to the United States Constitution.

Bringing the Death Penalty Back to Life

The United States Supreme Court reinstated the death penalty in Gregg v. Georgia (1976). President Bill Clinton bolstered capital punishment when he signed the Violent Crime Control and Law Enforcement Act of 1994, which expanded the scope of whom the federal government can execute and contains title VI: The Federal Death Penalty Act of 1994 (FDPA). Section 3596(a) of the FDPA requires the Federal government to implement executions “prescribed by the law of the State in which the sentence is imposed.” This bill is inconsistent with Section 26.3 of Title 28 of the Code of Federal Regulations that was enacted in 1993. Then-US Attorney General William Barr published this final rule mandating a single federal execution procedure. These two federal policies were in use when the United States conducted three executions between 2001 and 2003, ending a nearly 40-year hiatus of federal executions.

While the BOP has not executed anyone since 2003, 62 people are currently sentenced to the federal death row. The demographics of the condemned individuals are 43.6 percent White, 41.9 percent Black, 11.3 percent Latino, 1.6 percent Asian, and 1.6 percent Native American. Black communities, while only 13.4 percent of the United States population, are overrepresented on the federal death row. The contrasting sizes of these two Black populations are disproportionate and may signal that the federal death row exhibits sentencing disparities. Though there is disproportionality present, on July 25, 2019, the DOJ and BOP chose to move forward with scheduling five executions. Daniel Lewis Lee, Lezmond Mitchell, Wesley Ira Purkey, Alfred Bourgeois, and Dustin Lee Honken were scheduled to be injected with pentobarbital–a first-time drug for BOP executions. The BOP planned to conduct these five executions in a span of 37 days, between Dec. 9, 2019, and Jan. 15, 2020, the most executions ever conducted in such a small period of time. Recently, courts granted stays on all five executions. The US Court of Appeals stayed Mitchell’s execution due to potential racially-biased jurors, while the other four executions are stayed due to US Attorney General William Barr’s single execution federal procedure that conflicts with the FDPA. Pending court proceedings will determine if the five individuals will have their execution dates permanently dismissed.

Conclusion

As the DOJ and BOP consider killing American residents, many questions still linger: Should someone with tribal sovereignty be executed by the United States federal government? Should someone be executed when they were sentenced by jurors that might have been racially biased? Should the federal government be executing people for matters that are typically handled by the state? Should the federal government abolish the death penalty altogether? In 2018, the United States joined 19 other countries as the only countries in the world to carry out executions. Though the majority of executions in the United States occur at the state level, the BOP’s support of capital punishment holds a political weight that is symbolic of the country’s values.

US Attorney General William Barr believes in carrying out these executions claiming, “we owe it to the victims and their families.” Yet, not all of the families affected by the five condemned individuals believe in retribution as a method of healing. Daniel Lewis Lee took the lives of Earlene Branch Peterson’s daughter and granddaughter. Notwithstanding these traumatic experiences, Peterson pleads for the federal government to cease the efficient methods of killing that the BOP is modeling. While these families ask for these executions to stop, data also suggests capital punishment does not increase public safety: the possibility of a death sentence does not effectively deter “violent” crime. Meanwhile, fiscal resources are diverted away from evidence-based programs that support communities. For families like the Peterson’s, public safety, and the five condemned individuals, federal capital punishment must be eliminated in the United States.