Lame Duck Executions

There were policies that got a rise out of the angry crowd, like keeping “illegals” from “shithole countries” away from our borders. But there was no screaming about the failure to execute enough people. If it didn’t happen, no one would care, no one would wrap themselves in a MAGA flag to argue whether Trump was bigger than Jesus. Executions just weren’t on the radar. So what happened?

Last week, the Justice Department announced that it plans to execute three more inmates on federal death row. If the administration does so, along with two other executions already scheduled, it will have put 13 prisoners to death since July, marking one of the deadliest periods in the history of federal capital punishment since at least 1927, according to data from the Federal Bureau of Prisons.

It had been decades since the feds executed anyone. Executions had been phasing out on their own in most places, the bloodlust waning in light of recognition that our legal system was a little too prone to error to trust it to decide to take a life. Then there was the acceptance that it just wasn’t needed, as it served no better purpose than life in prison, and that it was fundamentally wrong for the government to be a killer anymore than anyone else.

States were still killing people, but execution protocols were problems. They didn’t work as well, meaning humanely, as they were supposed to, and the punishment was death, not torturous pain until death. Now it seems the feds are quietly working on fixing that problem as well.

The rule, reported earlier by ProPublica, stipulates that the federal government may conduct executions by lethal injection “or by any other manner prescribed by the law of the state in which the sentence was imposed or which has been designated by a court in accordance with” the law that governs implementation of the death sentence. It will go into effect 30 days after its scheduled publication on Friday, before some of the executions are set to take place.

Over the years, a variety of methods have been used to execute prisoners. Hanging. Firing squad. Gas chamber. Electric chair. Lethal injection, which has been both favored as the least horrible means of death and troubling as failing to be as “humane” as was claimed. As drugs for the three-drug-cocktail became harder to find, the feds decided instead to go with a one drug protocol. With this new reg, it will open the possibilities to other, less “complicated” methods of execution as states may use. As far as I know, the guillotine is not available in any state, though that could change.

What makes all this so bizarre is that the feds have pretty much let go of any pressing need to execute. There were no cries from the public to do so, no demands for “justice” that caught traction and pushed the government to get back into the business of killin’, and yet it’s happening. The next administration will have no interest in executing people, but the current one has suddenly found itself in a mad rush to kill as many prisoners as possible. Why?

It’s not as if Trump made executions a selling point. It’s not as if his supporters adore him for it. Since his only motivations are self-enrichment and self-aggrandizement, and executions don’t fit with his paradigm of things to do if they fail to provide him with any personal benefit, what pushes this mad rush to kill? Is this a Barr issue, a pet peeve of Bill Barr that people condemned to death need to be killed before he’s escorted out of the building?

And what’s with the establishment of new regs, during this lame duck period when focus should be on transition rather than putting another five people to death? To the extent there’s method to the madness, this will allow the government to employ means of execution that moot questions of the efficacy of legal injection. Challenging the means of execution has become the primary means of slowing down, if not stymieing, execution protocols, even if the alternative is the slow death penalty rather than the fast one.

Steve Vladeck, a law professor at the University of Texas, noted that Mr. Biden could reverse the rule, but said that it represented a “symbolic” and “deeply practical” step by the department to carry out its five scheduled executions.

“It’s a pretty gruesome way to go out,” he said. “This is basically the attorney general doubling down on, you know, sort of making it possible to execute as many federal prisoners as he can before his tenure is over.”

As there won’t be much time to avail itself of old school methods of execution, this shift of opening up alternatives that had been rejected, and largely unused, for decades is hard to explain. Does Barr just want to make sure that an alternative will be available to execute people in the future, just in case another administration takes office some day with some deep desire to put people to death, and shouldn’t find itself hampered by legal challenges?

Robert Dunham, the executive director of the Death Penalty Information Center, expected that the new rule would most likely result in fewer and less complicated legal challenges to executions, but that it would quickly become immaterial under an administration that does not seek to execute inmates.

“It tells us more about how much the administration wants to kill prisoners than it does about any real correctional need,” he said.

Just as there is no burning issue about the government’s failure to execute enough people, there is unlikely to be any big issue in the future. Capital punishment is a travesty which is slowly dying of its own accord. Not completely and not fast enough, and when a defendant is convicted of committing crimes so heinous, so horrible, that passions are ironically stirred to more killing, it comes back on the radar.

But these executions? These aren’t big issues of burning public concern, and most people have no idea that during the final hours of the Trump administration, Bill Barr is in a huge rush to kill, and to eliminate challenges to killing, even if it means bringing back the old gruesome ways.

18 thoughts on “Lame Duck Executions

  1. Guitardave

    Its called compromise, Scott….
    “OK, we’ll pardon the healthy turkey, but the sick duck gets the axe”

  2. Skink

    When I heard about this the other day, I took a look at the BOP website. The 8 executions since July equal all those dating to February 1954. The planned additionals will take it back to before Julius and Ethel were turned off by the feds. That was in 1953.

    As you say, the states are giving up on carrying out executions. In fact, the Swamp has 340 on its death rows, dating to 1975. It sure seems executions will go the way of disco.

    The current push can’t be figured by logic. You have to use a squirrely brain to figure why this is being done. Fortunately, I have a squirrel buddy. He was thumped by a truck but didn’t die. I pondered the question to him. He gave a very squirrely answer: some dipshit has higher political aspirations and thinks the war on whatever will make a comeback.

    1. SHG Post author

      Had there been any push for executions, this would be a huge subject of debate. It’s not, which can only be explained by the fact that there is no significant demand. So why is it happening? Other than Barr wanting it to, I can’t think of a reason.

      1. Skink

        You don’t get it because you use your regular brain. Embrace the squirrely!

        Barr, or someone like him, has future political ambitions. Barr, or someone like him, envisions a potential future of some violent unrest and a renewed push for law-and-order. In that potential future, he can point to these decisions as proof to the new commitment. “Lookee what I done; I stopped the clock on a bunch of murdering rats!”

        That there is no demand for the action makes it the perfect time because it carries little risk. The media and regular people are busy with the virus or Trump & Rudy, so it gets done with hardly a burp of notice, and only by us.

        1. Jay

          that’s actually pretty clever. I accept this as the explanation.

          I don’t know about you, but I often wonder about decisions prosecutors make, charging decisions, who to lock up for long periods. Sometimes it makes sense, sometimes I don’t get it. I had accepted, after chatting with prosecutors making these decisions, that prosecutors are bad people who assume the worst possible intentions and actions from my clients because they would be willing to do the horrible things they imagine. And so I had assumed that Barr, being evil and violent, abhors those on death row and wants to rid the world of as many as he can.

          But your explanation is much better.

          1. Skink

            This is a dark day in this here Hotel. Surely plague, pestilence and cross-species fornication will follow.

  3. Hunting Guy

    Maybe a better quote by an expert on the subject.

    Albert Pierrepoint.

    “I have come to the conclusion that executions solve nothing, and are only an antiquated relic of a primitive desire for revenge which takes the easy way and hands over the responsibility for revenge to other people…The trouble with the death penalty has always been that nobody wanted it for everybody, but everybody differed about who should get off.”

  4. Steve King

    I think that there are some people who commit crimes so far beyond the pale that there is no other meaningful punishment . The death penalty is appropriate in these cases. Hans von Spakovsky has argued for a proof standard of “with no doubt” for death penalty cases. This could be applied to the trail and penalty phases.

    The State commits a brutal act in carrying out an execution. There is no way around this. The method should be humane enough. It does not have to be perfectly humane.

  5. Richard Kopf

    Scott, obviously, I should not and do not express an opinion on the death penalty. That question pends before me in Arkansas and I recently permitted an execution in Nebraska. But I think it proper to address another intriguing question posed by your post.

    Given the sentiments of many and the myriad hurdles that face any attempt to carry out the death penalty, why do we continue the practice?

    The state kills to express retribution. That impulse does not come from the lizard brain but a much higher cognitive state. Some, and a wild guess tells me it approximates the number of people who voted for President Trump, firmly believe the death penalty is a proper form of “justice.”*

    Not a lot, but some good and thoughtful scholars can do a wonderful job of coherently expressing why retribution is a proper part of an ordered society. Retribution is buried deep in the moral centers of many people. They conclude that there is not too high a price to pay to achieve this “justice.” Unless the price is paid, society will be replaced by the state of nature as the death of innocent victims is depreciated.

    All the best.


    *By the way, I have not voted since I became a judge in 1987.

    1. SHG Post author

      While I don’t share certain scholars’ base rationalization for retribution, I still understand why they feel that way, and why they wrap it up in the amorphous “justice.” Who am I to deny people’s claims of entitlement to feelings (which have become extremely popular among scholars these days)?

      But my issue is less with the validity of retribution, which I submit is achieved as well through the slow death penalty as the somewhat faster one, than the efficacy of the system. Right above us, Steve King brought up Hans von Spakovsky’s argument that if we elevated the burden of proof to “with no doubt,” that would do the trick. What do you tell the DNA unearth 30 years later when everybody, but everybody, had no doubt at the time?

      We’ve all seen absolute certainty shot to hell, whether by science advancing or junk science debunked, and know, even if we prefer not to say it aloud, that we’re working with an imperfect system. There’s no Mulligan after an execution, and if the best we can argue in favor of taking that risk is that retribution makes some people feel good, they can at least take comfort in knowing that we occasionally imprison innocent people for decades.

      1. Richard Kopf


        Since I don’t prosecute or defend these notions, and merely try to understand them, I will not respond except to state the following:

        Your review of The Death of Punishment by Professor Robert Blecker was brilliant. I particularly enjoyed the fact he slightly unsettled you,* thus revealing, as you so often preach, that law and thinking are hard.

        All the best.


        *”But I still struggle to shake off Blecker’s claim that humans have some innate need to embrace the avenging angel of death to kill others, and that taints everything else he says. It still leaves me to wonder what ruined him as a child. Ultimately, I can’t get past it.”

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