Why Reviving the Federal Death Penalty Should Be on a Case-by-Case Basis
“Dylann Roof? I have no problem—no problem—seeing him receive the death penalty,” says Tracey Maclin, a School of Law professor and an expert on constitutional law, the Supreme Court, civil rights, and criminal law and procedure. Roof, the white supremacist on federal death row for murdering nine African American churchgoers in Charleston, S.C., in 2015, is a rare exception for the generally anti–capital punishment Maclin.
When the state should or should not take life has been on Maclin’s mind after President Donald Trump and Attorney General William Barr, longtime supporters of capital punishment, announced a resumption of executions of federal death-row prisoners last week, resurrecting a penalty last imposed in 2003, though states have executed inmates on their own death rows since then.
The administration’s plan slates executions of five convicted child-killers at a federal penitentiary in Indiana starting in December. Barr said other executions would follow and announced that the government would use lethal injection with the drug pentobarbital, replacing the three-drug cocktail that had been used previously. Several states stopped using cocktails following grisly cases in which they failed to fully sedate prisoners.
Congresswoman Ayanna Pressley (D-Ma.) said she would file a bill abolishing federal executions to head the administration off. The fight is playing out as public support for capital punishment has ebbed, down from almost 80 percent in 1996, to less than 50 percent three years ago. The erosion of support followed research challenging the idea that the death penalty is a deterrent to crime, revelations of 166 innocents on state death rows who were wrongly convicted, and charges of racial bias in the penalty’s application. Today, 21 states ban executions.
A 1972 Supreme Court ruling all but threw out capital punishment for violating the constitutional prohibition of “cruel and unusual” punishment, but the justices reversed themselves four years later. Uncle Sam has observed an unofficial moratorium since 2003.
BU Today asked Maclin to parse the debate.
BU Today: What’s your personal opinion on capital punishment?
Maclin: I’m generally opposed but not categorically opposed to it. The people who tend to get the death penalty tend to be poor, black, or racial minorities. They tend not to have effective counsel at trial. There have been some people executed who turned out to be innocent—not a lot, but enough to give one pause. I have heard of no study that shows empirically that the death penalty deters [crime].
They might say we can guarantee that the person executed will never kill again. Some guy in Maine killed his wife—sentenced long term—was eventually paroled, and then he attacked some woman he befriended. He was convicted, got paroled again; the judge said, “I think he’s aged out of criminal behavior.” Guess what happened? He got acquainted with a homeless woman; he ended up killing her.
What do you think of the Trump administration’s proposal?
You can’t help but wonder whether politics has something to do with it. It wouldn’t surprise me if this were done to generate enthusiasm in the so-called Trump base. On the other hand, some of those [five slated for execution] fall into rather grisly, atrocious crimes that I could support having the death penalty. I have not seen anything in the media where any of the five are claiming innocence.
It’s not going to affect what the states do, and it’s certainly not going to have any deterrent impact with respect to people who may contemplate committing similar crimes in the future.
As most executions are done at the state level, are we apt to see many federal prisoners executed under the new policy?
Certainly not as many as at the state level. Texas, Alabama—most [death penalty states] tend to be below the Mason-Dixon line. California used to have a large death row population, but the current governor put a moratorium with respect to the death penalty.
Can you talk about the avenues of appeal for federal as opposed to state death sentences?
Legislation signed by President Clinton in 1996, called the Antiterrorism and Effective Death Penalty Act [AEDPA], limits the number of appeals that federal prisoners can take in federal court. I am no fan of AEDPA, but others will tell you that death penalty defendants and their lawyers will often sandbag the courts—they won’t bring all their claims until the last second, because they are trying to stave off execution. That was part of the motivation behind AEDPA.
What are the prospects for challenges such as Pressley’s to succeed, especially given growing public opposition to capital punishment?
Slim to none, and that’s because it will never pass the Republican Senate. It will certainly be vetoed, if it got past the Senate, by Trump. And frankly, I’m not sure the votes are there in the House of Representatives, even as currently constituted. I don’t recall Obama being very vocal against the death penalty, which obviously was strategic. A lot of folks outside of the [Route] 128 corridor and New York City, and below the Mason-Dixon line support the death penalty.
The courts are available [to challenge the Trump initiative], but unless they come up with new claims between now and the time they’re slated to be executed, that’s not going to happen.
Attorney General Barr has ordered executions to be done with pentobarbital, replacing the drug cocktail that had led to botched executions. Will that new drug make this more politically or morally palatable?
I don’t know the science—I won’t tell you my chemistry grade in high school—but I don’t think the public will think that that makes a difference. Public support [for execution] has waned, but a few more incidents—the situation in California last week [where a gunman killed three at a garlic festival]—could flip it just as easily.
One thing we haven’t touched on: [execution] is expensive. I have seen studies that say it’s cheaper to put somebody in prison for life than to go through execution. The primary reason for that is the lawyers’ fees go up exponentially when you have all these appeals.