I have seen the death penalty up close. During my years as Ohio’s Republican attorney general, I oversaw 18 executions. Before that, I helped write the state’s death penalty law as a legislator. I’ve heard all the justifications — deterrence, support for victims, cost savings. And I know now they are all wrong, and those misguided arguments act as a smoke screen for the profound flaws that mark capital punishment.
Thus, where I once urged jurors and judges to impose or uphold death sentences, I now recognize a stark truth: The death penalty is a failed policy.
This is as true for the federal death penalty system as it is in Ohio and other states. That is why I have called on the Trump administration to stop the executions planned for Dec. 9 for five men, the first federal executions in 16 years. I am joined by hundreds of former and current state and federal prosecutors, former judges, correctional officials and people who lost loved ones to homicide.
On Monday, though, the administration asked the Supreme Court to allow those executions by lethal injection to proceed, arguing that it should overturn a lower court order putting a hold on them so the prisoners could challenge execution procedures.
The cases of the five men facing federal execution are emblematic of the federal death penalty system’s flaws. In the case of Daniel Lee, the first man scheduled for execution, members of his victims’ family have been pleading with the government to resentence him to life without parole, the same sentence his far more culpable co-defendant received; even the trial judge and lead trial prosecutor oppose this execution.
What is more, at least one of the men facing imminent execution is intellectually disabled and should be categorically ineligible for execution. Another suffers from such advanced dementia that he does not understand why the government plans to execute him, believing it is in retaliation for his many complaints about prison conditions.
Mr. Lee’s case is not the only one in which a co-defendant received a life sentence, nor is his the only case in which the victim’s family opposes execution. And in virtually every case, the lawyers representing these men during their federal trials failed to present important and available evidence about their traumatic upbringings that might have compelled at least one juror to vote for a life sentence.
Many of us who oppose the resumption of federal executions support the death penalty and many don’t. Some of our concerns stem from the recognition that there is a widespread misconception that the federal death penalty is some sort of “gold standard” with a rigorous, careful process producing evenhanded justice for crimes affecting our national interests, such as terrorism and espionage. This is false: only one federal inmate is under a death sentence for a terrorism offense, and none for espionage or treason.
In fact, every inmate on federal death row could have been prosecuted in state court, and some were already serving long state prison terms for the same homicide for which they received a federal death sentence. Others, including one of those set for execution, are on federal death row for homicides associated with a carjacking, in which the only federal connection was the involvement of a car that touched interstate commerce. These cases fall squarely within the federal death penalty law, but they hardly establish uniquely federal interests.
Another unfortunate reality is that the federal death penalty is marred by the same problems of racial bias and geographical disparity found in the state death penalty systems. Just three Southern states — Texas, Virginia, and Missouri — are responsible for nearly half of the federal death row population. People of color, particularly African-American men, also account for more than half of all current federal death sentences.
And the overlap between these two areas of disparity is significant: Every person on the federal death row from Virginia and all from the Eastern District of Missouri are people of color. And people of color have received 75 percent of federal death sentences imposed in Texas in the modern era.
There is another deep-seated problem in the federal death-penalty system that often escapes public notice: Federal prisoners typically get less judicial scrutiny of their convictions and death sentences than do state death-row prisoners. People sentenced to death in state courts can mount appeals in their state jurisdictions and then turn to a habeas proceeding in the federal courts. Those sentenced federally have only a single chance in post-conviction to seek redress and then have no automatic right to appeal.
Whether they get an appeal within the single federal system varies widely by region. The Court of Appeals for the Fifth Circuit, which includes Texas (the state with the most federal death sentences), has never granted a federal death row prisoner permission to appeal based on a post-conviction issue. The Supreme Court has granted review in only one federal death penalty case in the modern era, and that was two decades ago. The number of federal death sentences returned since then has tripled.
Indeed, although the governing law could be read to entitle all condemned federal prisoners to an evidentiary hearing on their post-conviction claims, many federal death-row prisoners have completed all available appeals without ever having a court consider evidence in support of unsettling allegations such as judicial bias or improper jury conduct.
This is certainly true of the men scheduled for execution. In each case, they received either no evidentiary hearing in post-conviction proceedings or only a limited opportunity to develop their claims, and were then barred from appealing most or all of their post-conviction claims. As a former attorney general, I have no interest in seeing unnecessary delays or frivolous claims raised in any litigation, including in capital cases. But the problems in these cases, particularly where the people scheduled to be executed have been denied meaningful review, should trouble all of us.
Much has been written in recent years about the decline of the death penalty in America, a decline that has occurred for good reason. Capital punishment is costly, offers no proven deterrent benefit and delays healing for victims’ family members, while also traumatizing correctional officers and risking the execution of innocent people. These flaws are inherent in the system, just as much in the case of the federal death penalty as in the states.
The federal government has not executed anyone since 2003. In light of all the problems with the federal death penalty, as reflected in the cases set for execution, the Trump administration should keep it that way.
Jim Petro was the attorney general of Ohio from 2003 to 2007.
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