By Miriam Gohara
The Trump administration’s announcement of a new lethal injection protocol and its scheduling five back-to-back executions show that on the death penalty, it is out of step with the rest of the country.
Support for the death penalty has dwindled across the US. In recent years, lawmakers in New Hampshire and Oregon voted to end or seriously limit capital punishment, while repeal has gained serious, bipartisan consideration in Kansas, Utah, and Wyoming. In 2018, juries returned 43 death sentences, a drastic reduction from the 295 they returned a decade ago. While the states carried out nearly 100 executions a year in the mid-1990s, there have been 25 or fewer executions in each of the past three years, with those concentrated in a handful of states.
The death penalty’s decline in the states reflects growing bipartisan concerns about capital punishment. They include excessive cost, lack of deterrence, racial bias, geographical concentration, junk science, prosecutorial overreach, and the risk of executing an innocent person. The same problems that have led states to rethink the death penalty exist equally in the federal system. Yet, the Trump administration’s decision to resume executions appears to ignore these fundamental problems.
There are also serious doubts that the government’s execution plan is lawful. The administration announced a brand-new execution protocol, involving a lethal-injection method that has never used before, at the same time as it set the five execution dates. The government has selected for execution prisoners who are not party to a long-running federal lawsuit challenging the legality of lethal injection. In doing so, the government appears poised to make an end-run around the courts. It is also depriving the public of its legal right to review and comment on the new protocol. The government’s approach, which removes its execution methods from judicial and public scrutiny, shrouds the source of the lethal injection drugs, the training of the executioners, and other aspects of the execution process in secrecy.
The administration’s execution plan also shows its disregard for the correctional staff who must carry it out. The government has scheduled these executions in rapid succession, with all five to take place within five weeks in December and January. This unexplained rush carries the risk of a botched procedure because there will be no time for a meaningful debriefing following each execution, and it intensifies already significant pressures on correctional staff.
The resumption of federal executions is a sharp departure from the widespread, bipartisan turn away from capital punishment. As currently planned, it also deprives the public of the transparency and meticulous caution it deserves if the government is going to kill in its name. The Trump administration should instead follow the national trend of halting executions to permit careful examination of the death penalty. Doing otherwise is a disservice to America.
Miriam Gohara is a Clinical Associate Professor of Law at Yale Law School. Professor Gohara spent sixteen years representing death-sentenced clients in post-conviction litigation, first as assistant counsel at the NAACP Legal Defense Fund (LDF) and then as a specially designated federal public defender with the Federal Capital Habeas Project.