The Death Penalty Is Already a Farce. William Barr’s Plan Might Make It Torturous.

Attorney General William Barr and President Donald Trump.
Attorney General William Barr and President Donald Trump. Photo: Chip Somodevilla/Getty Images

The message was clear in Thursday’s announcement that the Justice Department plans to execute five prisoners by early 2020: The Trump administration is willing to pursue extreme measures to inflict pain on those it deems deserving. Attorney General William Barr’s plan ends an informal 16-year federal moratorium on executing those sentenced to death. “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 said of the about-face.

The federal government has declined to execute any death-row inmates since 2003. Eric Holder, the AG under President Obama, personally opposed the practice and refused to pursue it even as he allowed his attorneys to seek capital punishment at trial. Barr is different. In its proclamation, his DOJ lists the men slated to die in December and January and outlines their crimes in excruciating detail. The acts described are indeed gruesome: Daniel Lewis Lee, Lezmond Mitchell, Wesley Ira Purkey, Alfred Bourgeois, and Dustin Lee Honken were each found guilty of murder, in some cases involving rape or child abuse, sometimes with multiple victims.

In spite of these examples, public opinion is aligned against capital punishment at higher rates today than at almost any other point since the mid 1990s, according to the Pew Research Center, reflecting a downward trend in support spanning a quarter-century. Still, 54 percent of Americans favor it, compared with 39 percent who oppose it. It’s unlikely that enough would lose sleep over these five executions to shift majority sentiment, let alone prompt the DOJ to reconsider its decision in the next few months. But capital punishment in America remains a farce. There’s no evidence that it deters crime. Its application is racist, as indicated by the disproportionate share of black people on whom it is imposed. (Black people make up 13 percent of the population but 34 percent of inmates put to death since 1976.) The U.S. is an outlier in deploying it — every European nation has abolished capital punishment except for Belarus, a dictatorship. Perhaps most salient to Barr’s announcement, it’s often carried out using lethal drugs that, rather than facilitate prisoners’ painless transition, heighten the risk of a torturous death.

The DOJ dedicates a full paragraph of its announcement to rationalizing its planned use of one drug in particular — pentobarbital — in the five upcoming executions. “Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment,” reads one passage. This may be so, but court sanction does not elide the method’s dangers. For years, pentobarbital was manufactured by Lundbeck, a pharmaceutical company headquartered in Denmark, which created a shortage when it decided to stop selling the drug to U.S. states for executions in 2011, according to Mother Jones.

As stockpiles ran low, states scrambled to find alternatives to continue killing people apace. Some, like Texas and Missouri, which, along with Virginia, account for half of all federal death sentences, turned to “compounding pharmacies” — firms traditionally used to make specialized drug combinations that were unavailable commercially — to create lethal-injection substances that mimicked the originals. But skyrocketing demand combined with less-stringent federal regulation of these facilities caused problems. Five of the 11 inmates executed in Texas in 2018 complained of a painful “burning” sensation as locally made pentobarbital coursed through their veins — a testament, critics argue, to the contaminants present at some compounding pharmacies and the faster degradation rates for drugs made in them. Last year, BuzzFeed News investigated where Texas gets its pentobarbital and discovered eight compounding pharmacies, out of roughly 200, that have had their licenses revoked or placed on probation. One, Greenpark in Houston, was “cited for scores of safety violations,” having “compounded the wrong drug for three children, sending one to the emergency room, and forged quality-control documents.”

It’s unclear how — or even if — the federal government plans to circumvent these pitfalls to deliver a less painful form of the drug into inmates’ bodies. The administration has rarely been deterred by the suffering of those it deems unworthy of basic rights, to be sure, as the conditions at its immigrant-detention camps at the U.S.-Mexico border illustrate. Nor, apparently, is it swayed by the arguments put forth by influential abolitionists like defense attorney Bryan Stevenson, who hold that — like Germany’s history with the Holocaust — America’s history with slavery and Native American genocide nullifies its moral legitimacy to put people to death. But one thing remains clear as Trump and Barr cater to the punitive tastes of the president’s supporters: Alongside its inefficacy and racism, the death penalty’s often-agonizing methods of application render moot all arguments that it’s anything more than revenge.

For Barr’s Death-Penalty Plan, the Devil Is in the Details