Why the Attorney General’s Concern About Crime Victims and Their Families Rings Hollow

The federal government has not executed a single person in nearly 17 years. Since then, both the murder rate and the violent crime rate in the United States have dropped. Nevertheless, Attorney General William Barr, the nation’s top prosecutor—who has never prosecuted a criminal case—plans to resume federal executions, claiming the government “owe[s] it to the victims and their families.”

Barr’s tactic is a familiar one used by those committed to failed tough-on-crime policies: sidestep facts by cloaking yourself in a professed commitment to victims.

In this case, Barr is ignoring that the death penalty does not deter crime; it is most often used on people who came from environments rife with abuse, violence, and poverty. Since 1973, at least 166 people sentenced to death were found to have been wrongfully convicted, and innocent people have almost certainly been executed. Like nearly every aspect of the criminal legal system, it is infected with racial bias. Not to mention that the death penalty is exorbitantly costly, diverting tax dollars from mental health and substance use treatment, education, job training, and victims’ services—the types of programs that could prevent crime in the first place.

And the systemic problems plaguing capital punishment are not limited to the states. Racial disparities are actually worse at the federal level. Black people, who are 13 percent of this country’s population, represent 42 percent of the people on death row in the federal system. Texas, where Black people are 12 percent of the population, sends the most people to federal death row, and 62 percent are Black.

The pursuit of a federal death sentence drains government budgets. A federal death penalty trial costs eight times as much as a similar trial where death is not sought, even when the case would be eligible. And for all that taxpayer money, about three quarters of federal capital punishment trials in recent decades have ended in an outcome other than a death sentence.

Without facts on his side, Barr unsurprisingly pivoted to victims in bringing back executions. But his supposed commitment to victims is hollow. The first person the federal government is scheduled to execute was convicted 20 years ago for killing a husband, wife, and their young daughter. Soon after Barr’s announcement, Earlene Branch Peterson, who lost both her daughter and granddaughter in that horrific case, pleaded with the government not to execute the man responsible, saying it would “shame my daughter that someone has to die for her.”

Also scheduled to be executed by the federal government is Lezmond Mitchell, a member of the Navajo Nation convicted of a 2001 murder on Navajo land. At the time of trial, the victim’s family said they did not want to see Mitchell sentenced to death. But then Attorney General John Ashcroft, who believed there was no racial bias in the federal death penalty, pursued a death sentence anyway. A mostly white jury sentenced Mitchell to death in 2003. Over 15 years later, the victim’s family continues to be against killing Mitchell. Even the victim’s grandson, who favored death at the time of trial, has changed his mind, saying, “There’s no reason another person needs to die. … That’s not justice, it’s revenge.”

When Barr announced his plans, he said no one scheduled to be executed had any pending appeals. Not true. Mitchell’s appeal was pending, and in October, the Ninth Circuit granted him a temporary stay of execution.

These are not isolated examples. A group consisting of 175 family members of people who were murdered urged Barr in a letter to change his mind. They wrote that the death penalty “does not prevent violence,” “solve crimes,” or “provide services to families like ours.” They also wrote that the death penalty “exacerbates the trauma of losing a loved one and creates yet another grieving family. It also wastes many millions of dollars that could be better invested in programs that actually reduce crime and violence and that address the needs of families like ours.”

Despite such pleas, Barr has yet to reconsider.

Even in cases some may consider the worst of the worst, families do not all want to see the person put to death. Dylann Roof, who killed nine Black people in a racist attack on a South Carolina church, and Dzhokhar Tsarnaev, who along with his brother committed the bombing at the Boston Marathon, are both on federal death row. In both cases, family members of some, though not all, of the victims said they did not want to see either one killed. The parents of Martin Richard, the youngest victim of the Boston bombing at 8 years old, wrote that the death  penalty would only “prolong reliving the most painful day of our lives.”

It should not be surprising that although some victims’ families fully support the death penalty, not all do. The reasons run the spectrum, including faith, forgiveness, a belief violence will not stop violence, that the death penalty will not bring closure but instead prolong their pain, and many others. Indeed, the successful effort this year to repeal New Hampshire’s death penalty statute was led by state Representative Renny Cushing, whose father and brother-in-law were both murdered.

Barr is far from alone among prosecutors who use victims to further their own agendas. Such prosecutors may respect a theoretical victim, but most never engage with the difficult work of truly helping victims.  They don’t understand that victims have different opinions and may benefit from different outcomes, that victims may need our assistance after a prosecution ends or even without a prosecution, that the line between victim and defendant is often blurry, that punishment for crimes and accountability are far from synonymous, and that so many of the failed policies of the past are not only counterproductive but actually leave victims, their families, and their communities worse off.

Crime victims, no matter the offense, are not a monolithic group only vindicated by maximum punishment. In New York, Danielle Sered’s organization Common Justice, which promotes solutions to violence other than incarceration, found that when victims were offered the choice between sending someone to prison or participating in a restorative justice program that offers support to both parties, 90 percent chose restorative justice. Such programs, however, are the exception. In most jurisdictions, a victim of a crime faces two options: do nothing about what happened and receive no help in return, or cooperate with law enforcement and prosecutors who then pursue punishment as a synonym for justice.

At the moment, multiple recent rulings have temporarily halted the impending federal executions. But at least three Supreme Court justices have indicated that they would allow the executions to proceed before ruling to send the case back to the federal appellate court in Washington, D.C. On Jan. 15, that court will hear oral arguments and then decide whether the federal government can proceed with its plan. Meanwhile, Barr is steamrolling ahead, using victims as a means to enact the same policies that have exploded our prison populations and budgets and devastated communities throughout this country.

In recent years, several governors have stopped all executions in their states. They recognized the countless unfixable problems marring capital punishment and that there are alternatives that both provide accountability and protect communities. In so doing, these governors did not disrespect victims. Rather, they understood that such a patently unfair system cannot be trusted to exact the ultimate punishment.

Whether in trying to abolish the death penalty or in pursuing broader reform, we can no longer let false claims of caring about victims distract from sincere efforts to change our criminal legal system into one that may eventually be just and humane.

Ben Miller is a senior legal counsel at the Justice Collaborative, a nonprofit organization working to reform the criminal legal system.

Daniel S. Harawa is an Assistant Professor of Practice and Director of the Appellate Clinic at Washington University in St. Louis School of Law.