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#20 The History of the Federal Death Penalty

In 1972, the Supreme Court struck down the existing capital punishment laws in this country as unconstitutional, and halted all executions. Due to the evidence presented in the case Furman v. Georgia, they found that death sentences were applied disproportionately to certain classes of people; specifically, to African-Americans, and the poor. All existing laws in that regard, at both the state and federal level, were voided. In order to go forward from that point, new laws would need to be enacted to remedy the problems, and ensure that future sentences were constitutional.

Some chose at that point to no longer pursue executions, and became non-death penalty states. But by 1976, other states had their new laws in place, and were allowed by the Supreme Court to resume seeking the death penalty. This is considered to be the beginning of the modern era of capital punishment.

(It should be pointed out at this time that two of the major arguments against the death penalty even now remain: that it is applied disproportionately to minorities, and the poor. So I am at a loss to explain what the brief hiatus from executions in the 70's accomplished, or how the current laws are deemed "constitutional".)

However, it was state level capital punishment which resumed in 1976. Federal prosecutions seeking death sentences, which can over-ride the legal prerogatives of individual states, and be imposed even in a state which chose to eschew capital punishment, were not approved again until 1987.

When the federal death penalty was reinstated, over thirty years ago, there was not a clear plan laid out by Congress for its implementation. When capital cases began to be prosecuted in federal court, and death sentences handed down, no preparations had been made to handle the disposition of the condemned prisoners.

This lack of foresight resulted in the prisoners being handed over to state level custody. In spite of the fact that the states had no jurisdiction over the federal convictions, the state where the crime occurred suddenly found itself responsible for both housing, as well as executing, a federal prisoner. With no funds set aside by law to handle this situation, each state was reduced to wrangling with the federal courts in their district for the necessary funds.

To complicate matters further, no provisions had been made to deal with federal death sentences in states which did not have the death penalty. So could the federal government force a state which had outlawed executions to go against their own laws, in housing and executing a prisoner in spite of this? Could the prisoner legally be handed over to some other state for execution?

During the time period when each of the states were deemed responsible for dealing with those sentenced to death in federal court, no federal prisoners were ever executed. After more than a decade of jurisdictional bickering, some decisions were finally made. In 1999, the federal Bureau of Prisons opened its own death row. Officially designated the Special Confinement Unit, or SCU, it was located at the old penitentiary in Terre Haute, Indiana, which was originally built in 1939. All the prisoners, scattered throughout the states, were gathered and brought to this central holding facility. In 2006, another penitentiary was completed, across the street from the old, and the condemned were moved yet again, to the new facility, where they remain to this day. (The old death row unit was redesignated as the Closed Management Unit, or CMU, and is used to house those convicted of charges related to terrorism.)

Since its inception, the federal death penalty has been massively overhauled and expanded twice; Once in the wake of the 1994 Oklahoma City Bombing, and again after the 9/11 terrorist attacks, in 2001. Both times, the revisions were passed swiftly, amidst the hysteria engendered by the attendant tragedies. Little forethought was exhibited by politicians involved, as they utilized the situations to further their own political agenda. Which is why many of the same problems that have plagued the federal death sentences from the outset are still being litigated in court to this day.

In spite of the billions of dollars spent, only three federal prisoners have ever been executed in the modern era. Timothy McVeigh, in 2001, Juan Garza, also in 2001, and Lou Jones, in 2003. During this same time period, there have been more than a dozen federal sentences of death overturned. (Donald Fell, David Jackson, David Hammer, Daryl Johnson, Richard Stint, Ronnel Wilson, Richard Chandler, Paul Hardy, Angela Johnson, and Arboleta Ortiz, just to name a few.) With that sort of disparity in what is carried out, and what is overturned, it does not take a genius to see that things are not working out well.

In light of the difficulties surrounding the federal executions, the government appeared to have given up for many years. After the executions of four men were halted in 2006, due to a lawsuit challenging the lethal injection procedure, no new execution dates were scheduled for more than 13 years.

This past summer, in July of 2019, dates were set for five men to be executed. Three were supposed to occur in December of 2019, and the other two in January of 2020. Many defense attorneys were caught off guard, and were stunned by the sudden turn of events. This could have left the prisoners' lives in a very precarious position indeed. But as usual, the government officials involved went about things in a very slipshod manner, attempting to do as they pleased, with little regard to legality and proper procedure.

All of the same legal questions, which existed from the start, remain unsettled. The laws which originally provided that each prisoner must be executed in the manner of which state they were convicted are still in effect, with no new provisions to allow the Bureau of Prisons to legally complete the executions ever having been passed. The drug which the government now intends to use, and the manner in which it will be utilized, violates both the Controlled Substances Act, and the Food, Drug, and Cosmetic Act. The "execution protocol" which the government wishes to follow was implemented improperly, and violates the Administrative Procedures Act.

The list goes on and on, ad nauseam. The net result of this political ineptitude is that multiple stays in multiple jurisdictions were issued, halting all five of the scheduled executions. This came as little surprise to many. Even the guards who work the death row unit termed it all a "dog and pony show", and stated openly that they knew none of the execution dates would hold.

What will happen from this point is debatable. Even among the lawyers involved, there is no general consensus. Some expect the major issues to be resolved quickly, and expected dates to be reinstated by the end of February. Others believe that no ruling will be forthcoming until June, when a status conference is scheduled for the main civil lawsuit associated with most of the stays. Some few believe nothing will happen quickly at all, and that the stays will remain in place for some years to come.

Only time will tell which belief is correct. The only thing that may be stated with surety is that, when there is definitive news, you will find it here.


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