Fifty-four percent of Americans say they support capital punishment, but very few of them have any connection to it. Almost all death sentences come from just a smattering of counties in California, the Midwest, and the South. Twenty-six states that authorize the death penalty handed down no new sentences last year. Only a handful actually executed someone. While most Americans may favor the death penalty in theory, the actual practice is a remote abstraction for them.
That changed on Thursday. Attorney General Bill Barr announced that he will order the Federal Bureau of Prisons to schedule execution dates for five federal death-row prisoners, ending a 16-year de facto moratorium at the federal level. “Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Barr said in a statement. “The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”
Barr’s decision to frame the move in democratic terms is appropriate. The United States is still a democracy, even though it doesn’t always feel like one. Federal and state laws are still written by elected legislators and enforced on the people’s behalf. As a result, Americans continue to bear a certain responsibility for whatever the government does in their name. Residents of Massachusetts, by the same token, aren’t morally culpable for executions in Texas. Barr erased those boundaries on Thursday, making every American citizen an equal participant in the government’s premeditated taking of human life.
The federal resurrection of capital punishment comes as a growing number of states are abandoning it. In May, New Hampshire became the twenty-first state to scrap the death penalty after lawmakers overturned a gubernatorial veto. State supreme courts in Connecticut, Delaware, and Washington have struck down capital statutes in recent years, while state and local prosecutors asked the Pennsylvania Supreme Court to do the same earlier this month. In March, California Governor Gavin Newsom imposed a statewide moratorium on executions for the nation’s largest death row.
The federal government, by contrast, has never been a major player in American capital punishment: 1,500 prisoners have been executed nationwide since the Supreme Court revived the death penalty in 1976, but only three of them came from federal death row. The Death Penalty Information Center, a nonprofit organization that tracks capital punishment, lists 62 federal prisoners on death row, a tiny fraction of the roughly 2,600 prisoners nationwide who await execution.
Part of the reason for this disparity is that most crimes, including those eligible for the death penalty, are typically prosecuted by the states. The Clinton administration began scheduling executions in 1995, though the first one wouldn’t take place until 2001, when the government executed Oklahoma City bomber Timothy McVeigh. Two more prisoners received lethal injections at the federal prison in Terre Haute, Indiana, the last in 2003. In recent years, federal prosecutors sought the death penalty in high-profile cases against Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof. The Obama administration briefly toyed with the idea of ending the federal death penalty before deciding against it.
The new executions are scheduled for December and January. To make its decision more palatable, the Justice Department chose five prisoners who committed crimes against children or the elderly for the first slate of executions. Each of them has “exhausted their appellate and post-conviction remedies, and currently no legal impediments prevent their executions,” the department said in a statement. Last-minute challenges could still be filed to challenge the method of execution, though they are unlikely to succeed.
A major hurdle for American executions at any level is the availability of lethal-injection drugs. Barr said the Federal Bureau of Prisons would use pentobarbital to kill the five men. The federal government’s supplier is unknown. Over the past decade, pharmaceutical companies in the U.S. and the European Union imposed an embargo on selling drugs for use in executions. The traditional three-drug cocktail used sodium thiopental as a sedative and vecuronium bromide or a similar compound as a paralytic. State officials would then inject potassium chloride to stop the prisoner’s heart. After sodium thiopental became unobtainable, states began experimenting with alternatives.
The result of those experiments was an uptick in botched executions. In July 2014, Arizona officials performed a lethal injection on Joseph Wood with the sedative midazolam and hydromorphone, a potent narcotic. Most executions by lethal injection take between ten and twenty minutes. Wood spent an hour and fifty-seven minutes struggling for breath before he died, with one reporter counting more than 600 gasps for air. Two high-profile botched executions with midazolam in Oklahoma later that year brought a wave of new legal challenges.
The federal courts have long acted as a check on capital punishment’s worst excesses, but that role is fading fast. The Supreme Court made it virtually impossible to challenge the constitutionality of execution methods when it heard the midazolam case in 2015. Even the high court’s highest values now come second to keeping the machinery of death running. In February, a federal appeals court blocked Alabama from executing a Muslim prisoner while he challenged a state policy that required a Christian pastor to be present when he died. Instead of protecting the prisoner’s religious freedom, the Supreme Court’s conservative majority allowed the execution to go forward, drawing near-universal criticism from the left and right.
There is hope for Americans who don’t want to be part of a system that consciously takes human life. Almost all of the Democratic presidential candidates—from Joe Biden and Amy Klobuchar to Cory Booker and Elizabeth Warren—publicly oppose the death penalty. Most of them quickly spoke out against Barr’s plan. “We need a national moratorium on the death penalty, not a resurrection,” California Senator Kamala Harris wrote on Twitter on Thursday. “When I am president, we will abolish the death penalty,” Vermont Senator Bernie Sanders declared.
The divide couldn’t be sharper. While a majority of Americans still favor capital punishment, President Donald Trump seems to relish it. He took out full-page newspaper ads in 1989 to demand the execution of the Central Park Five, who were later exonerated. He pledged in 2015 to mandate the death penalty by executive order for people who kill police officers if elected president. Last February, he praised Chinese President Xi Jinping for his country’s policy of executing drug dealers without due process. Barr’s decision this week means federal policy now reflects Trump’s zeal. Only the American people can now change it.