There are definite perks to working at a Catholic Diocese. A couple weeks ago, I walked downstairs to the staff lounge and found myself drawn into a conversation with our Director of the Life, Peace & Justice Office and a Franciscan intern regarding the criminal justice system. Granted maybe not everyone’s idea of a good time is discussing the death penalty over a cup of coffee, but it was one of the highlights of my week and has inspired this new series for my blog.
Federal History of the Death Penalty in the United States
The first federal execution in the United States occurred in 1790 after a man named Thomas Bird was convicted of murder on the high seas. Federal executions include other notable names but perhaps none more infamous than the case of Julius and Ethel Rosenberg, who were convicted of federal espionage charges. The prosecutor in the Rosenberg case would later work for Sen. Joseph McCarthy. I recommend reading E. L. Doctorow’s The Book of Daniel, which is a fictionalized account of the Rosenberg case as told through the eyes of their son.
In 1972, the Supreme Court rendered a decision in Furman v. Georgia that applied the 8th Amendment and its prohibition against cruel and unusual punishment to all state and federal death penalty cases. However, the Furman decision was a reaction to the wording of death penalty statutes more than to the constitutional questions regarding the death penalty itself. The reprieve was short-lived and many states rewrote their laws to reinstate the death penalty. Four years later, the Supreme Court sided with the states in Gregg v. Georgia and allowed executions to proceed. The crime & punishment fervor of the 1990’s brought the passage brough the passage of the Federal Death Penalty Act significantly expanded the number of crimes eligible for the death penalty, with greater scrutiny on drug-related offenses.
The rate of federal executions is largely determined by the President of the United States. For better part of the last 30 years, only three federal executions have occurred, all of which were under the tenure of President George W. Bush. The Trump Administration took a far more draconian approach. 2020 was the first year on record where the number of federal executions surpassed the total state executions. While so much of the country was focused on protesting police brutality and systemic racism in the wake of George Floyd’s murder last summer, the federal government executed three men in just one week of July alone. During the administration’s final days in office, Dustin Higgs was executed by the federal government, the 13th prisoner executed within the span of six months. The Supreme Court declined to stop Higgs’ execution with a notable dissent from Justice Sonia Sotomayor. “After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully.”
Current Status of Death Penalty in the United States
Conversations regarding the death penalty are far from static. Laws are changing all time. As of writing this, there are 23 states and Washington D.C. have abolished the death penalty. Three of the remaining 27 states (California, Oregon and Pennsylvania) currently have moratoriums on death penalty, which are subject to change with political winds. Then, there is South Carolina.
South Carolina just reasserted the firing squad. I’ll repeat that. In 2021, South Carolina passed a law bringing the firing squad back into use as a justifiable way for the state to kill its death row prisoners. Perhaps equally horrific is why the state opted to write this new law; South Carolina legislators were concerned that not enough death row inmates were being killed. The previous law in South Carolina allowed the inmates to choose between the gas chamber and lethal injection. Yet like many death penalty states, South Carolina has struggled to obtain the “correct” drug cocktail for executions as drug companies and compounding pharmacies get increasingly squeamish about being associated with state-sponsored death. So now, Death row inmates in South Carolina cannot opt for a form of execution (i.e. lethal injection) that can essentially render their execution pragmatically impossible. Lest I suggest that all the death penalty “trends” in the United States are preposterously negative, the Commonwealth of Virginia abolished the death penalty on March 24 of this year. This is was significant for many reasons. Virginia is the first state in the former Confederacy to end the practice. Additionally, Virginia has a long legacy of executions going all the way back to the first in colonial America – held in Jamestown in 1608. Due to this long history, Virginia has executed more prisoners than any other state. Needless to say, this is viewed as a great victory for advocates against the death penalty who worked tirelessly to turn the tide in their state.