The Federal Death Penalty Has The Veneer Of Respectability. But It’s Just As Flawed As the States’ Killing Machines.

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

Update: Just after publication on July 13, a U.S. district court judge ordered the Department of Justice to delay the executions of Daniel Lee, Wesley Purkey, Dustin Lee Honken, and Keith Nelson until further order of the court. After a U.S. Supreme Court ruling in his case, Lee was executed at approximately 2 a.m. on July 14. 

This week, the federal government will resume executions for the first time in 17 years.  The federal government has set execution dates this week for Daniel Lee, Wesley Purkey and Dustin Lee Honken, and a fourth for Keith Nelson in August. The execution of Daniel Lee, set for today, was stayed on Friday by a federal judge who cited coronavirus-related health concerns by the victim’s family who were supposed to attend.  Lee’s attorneys said that “the trial judge, the lead prosecutor, and the victims’ family all oppose executing Danny Lee and believe a life sentence is appropriate.” Attorney General William Barr appealed the court’s grant of a stay opposing the motion by the victim’s family to intervene, filed because they were selected to attend his execution amidst “an exploding pandemic” and “are in an untenable position because they cannot exercise their rights as witnesses without putting their own lives in danger.”  On Sunday, at Barr’s request, a federal appeals court overturned the stay, allowing Lee’s execution to go forward.   

Purkey’s attorneys say he has schizophrenia, Alzheimer’s disease, and dementia, and can’t comprehend why the federal government plans to execute him. Honken’s death sentence was imposed for murders committed in Iowa, which abolished the death penalty in 1965, and which could have prosecuted him noncapitally in state court.

These cases demonstrate that the federal death penalty is just as troubled as when it is administered in the states. “A pervasive myth is that the federal death penalty is ‘the gold standard’ of capital punishment systems,” Lee’s attorney said in a June 29 statement. “This is false. The federal death penalty is arbitrary, racially-biased, and rife with poor lawyering and junk science. Problems unique to the federal death penalty include over-federalization of traditionally state crimes and restricted judicial review.” 

Indeed, throughout the federal death penalty’s history, profound concerns over its lottery-like features and the troubling specter of racial, ethnic, and geographic disparities abound. Instead of providing a universal standard for death penalty cases, the federal death penalty exhibits all of the flaws of the states’ death penalty systems—under a veneer of Department of Justice respectability.

Since Congress passed the modern federal death penalty in 1988, 82 people have been sentenced to death. Three have been executed, two have received clemency, and one died while on death row. Fourteen people have been removed from the row. There are currently 63 people on federal death row, according to the Federal Death Penalty Resource Center.      

In 2010, I co-authored a study with Rob Smith (Smith is the Executive Director of the Justice Collaborative; The Appeal is an editorially independent project of the Justice Collaborative) called The Racial Geography of the Federal Death Penalty for the Washington Law Review. We found that seven federal districts were responsible for 40 percent of the people on federal death row. We noted how districts like the Western District of Missouri and the Eastern District of Missouri had highly disproportionate death sentencing rates compared to other districts with much larger populations, and many more murders. 

Reviewing these and many other statistics in 2015, U.S Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg expressed concern over the widespread geographic arbitrariness in the application of the death penalty, and called for the court to consider its constitutionality. They wrote: “Thus, whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at research indicating that proper factors—such as ‘egregiousness’—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.”

In the aftermath of botched lethal injections in Oklahoma in 2014, concerns about the execution of innocent people, and the persistence of racism in the application of the death penalty, then-President Barack Obama said he was instructing the Department of Justice to examine the federal protocol for executions. Attorney General Barr said the review was completed last year, but it’s unclear if the results have been publicly disseminated.  

Since we last examined the federal death penalty 10 years ago, geographic and racial arbitrariness appear even more pernicious. While there are 94 federal districts and 11 circuits, only 39 districts have ever returned a federal death sentence. Three districts—including the Western District of Missouri—are together responsible for more than one quarter of death sentences. Just 10 districts are responsible for over half of federal death sentences.   

Although there are 11 federal circuit courts of appeal, 54 of 82 defendants sentenced to death have been from the Fourth, Fifth, and Eighth Circuits.  

This is more true today than ever: All four of the warrants signed for execution are from the Eighth Circuit (two from the Western District of Missouri). And the victims in each case are white.   

There is no hiding from the racist history of the federal death penalty. More than half of the 82 people sentenced to death have been Black or Hispanic; in 48 instances, the case involves white victims.  Indeed, only two white defendants have been sentenced to death for killing a Black person, whereas 13 Black people have been sentenced to death for killing white people. And while it is unclear why  Attorney General Bill Barr selected four white defendants set for execution this summer, had he proceeded chronologically by date of sentence, nearly all of them would have been Black.    

Since the early 1970s, Congress, state legislatures, and the courts have unsuccessfully attempted to revise the administration of the death penalty to ensure that it is reserved for the most culpable people guilty of the most aggravated offenses—and that arbitrary factors like race, bias, and geography play no role.   

But less than 1 percent of the more than 800,000 murders between 1970 and today have been prosecuted federally, and, of those murders, juries have imposed death sentences on just 82 individuals.  The small number of federal death sentences might lead the public to imagine that the federal death penalty is reserved only for mass murderers, serial killers, terrorists, and drug-kingpin-murderers, but that is not the case. Because Congress has expanded the federal death penalty to reach almost any imaginable murder, arbitrariness based upon race of defendant, race of victim, and resources has increased.

Of the more than 5,000 eligible cases that have been prosecuted in federal court, seven judges are responsible for more than 30 percent of the death sentences. One judge has sentenced six people to death; another has sentenced five people. Two of the cases under warrant were sentenced to death by the same judge. A single assistant U.S. attorney is responsible for five death sentences across two separate jurisdictions. As well, the quality of defense counsel for people sentenced to death is often poor and constitutionally ineffective: Three defense attorneys in Missouri and Texas are responsible for about 10 percent of the defendants on death row, one of whom is scheduled for execution this month. 

We don’t yet have a national consensus on the death penalty, but it is a geographically narrow, personality-driven punishment. We have a Missouri and Texas federal death penalty or an Eighth and Fifth Circuit death penalty. This is not because there are more federal crimes in those jurisdictions—nearly any offense involving a gun and a robbery or drug deal can be a federal offense—but rather because of a sordid combination of local prosecutorial political expediency or gamesmanship, systemic deficiencies in defense counsel, and judicial indifference or outright antagonism to these systemic deficiencies.   

We don’t really have federal death penalty—just a national disgrace. 

Ben Cohen is of counsel at the Promise of Justice Initiative, a New Orleans-based nonprofit that works to create positive change for people in the criminal legal system. Ben has been involved in four cases before the U.S. Supreme Court, including the landmark decision in Kennedy v. Louisiana, foreclosing the expansion of the death penalty to non-homicide offenses, and Ramos v. Louisiana, guaranteeing the right to trial by jury.