This morning, Daniel Lee Lewis was the first person executed by the federal government after the Supreme Court dismissed a lower court block. In a deeply racist country, public opinion is not an excuse for the death penalty, writes Ava DeSantis.
Yesterday, the Supreme Court refused to hear a challenge to the federal lethal injection protocol brought by death row inmates, effectively allowing the Trump administration to resume federal executions for the first time in 17 years.
This morning, the execution of Daniel Lewis Lee in Terre Haute, Indiana, ended the 17 federal abstention from executions. Lee’s last words were, “I didn’t do it. I’ve made a lot of mistakes in my life but I’m not a murderer. You’re killing an innocent man.” A jury convicted Lee of killing a family of three in 1996.
Lee’s attorney and the family of his alleged victims, as well as Lee himself, spoke out against his execution. “It is shameful that the government saw fit to carry out this execution during a pandemic,” said Ruth Friedman, Lee’s attorney. “It is shameful that the government saw fit to carry out this execution when counsel for Danny Lee could not be present with him, and when the judges in his case and even the family of his victims urged against it,” she continued.
“And it is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping.” Friedman concluded, “we hope that upon awakening, the country will be as outraged as we are.”
It is doubtful that the American public will display the proper outrage at this execution. The death penalty, despite its long known unethical nature, remains popular.
Changing the Justice Department policy
In June, Attorney General William Barr directed the Bureau of Prisons to schedule the executions of four inmates accused of killing children, including Daniel Lewis Lee. Attorneys for some of these inmates challenged the order, on the grounds that the government circumvented proper methods in order to wrongly execute inmates quickly.
Barr, in a statement announcing the order, said “the American people, acting through Congress and Presidents of both political parties, have long instructed that defendants convicted of the most heinous crimes should be subject to a sentence of death.”
“The four murderers whose executions are scheduled today have received full and fair proceedings under our Constitution and laws. We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”
In 2014, President Obama ordered his Justice Department to review capital punishment procedure and the effects of the three-step lethal injection process. Last year, Barr said they completed the Obama-era review and the three-step process will be replaced with one dosage of pentobarbital. Multiple states already use pentobarbital in executions.
The DOJ refused to comment on the origin of the pentobarbital it plans to use to carry out the scheduled executions. Anti-death penalty advocates say the Justice Department must disclose this information and evidence that they followed the Administrative Procedures Act (APA) in their acquisition of the drug.
“[The APA] is an act that brings transparency and accountability to the rule making process for an agency and here they skipped that process all together,” said Megan McCracken, a lawyer at the University of California-Berkely School of Law’s Death Penalty Clinic. The APA process allows the public to comment on proposed changes before their passing into law.
Public opinion is not enough
Certainly, Barr’s invocation of public opinion in combination with his refusal to share crucial information about pentobarbital with the public, ahead of Lee’s execution, is hypocritical. It is unclear whether the public would continue to support the death penalty if they understood the effects of pentobarbital on its victims. Gruesome methods of execution, however, did not push public support for the death penalty beneath 50%, in the past.
In 2014, they executed Clayton Lockett using the three-drug process, which caused him to convulse for an extended period of time before dying of a heart attack 40 minutes later. President Obama called the botched execution “deeply troubling,” but public support for the death penalty remained above 60%.
The Equal Justice Initiative created a database of exonerated inmates who were once on death row. The database indicates that about 1 in 9 of death row inmates are innocent, and relies on data largely available by 1987, in a study from the Stanford Law Review. It is evident that the death penalty is a punishment dolled out unequally, cruelly, and inaccurately. This information is not new and will not cause the public to turn against this form of punishment.
The growing recognition that the criminal justice system has fundamental flaws and enforces systemic racism, did not cause public support to turn against the death penalty, either. While 65% of Americans believe the criminal justice system treats Black Americans unfairly, the majority of Americans still hold that this system should have the power of the death penalty. In other words, Americans believe that the criminal justice system is a tool of white supremacy, but would like it to have complete power over its victims.
Pro-death penalty advocates often cite public opinion, saying the criminal justice system should reflect the will of the American public. This is essentially to say, if we live in a white supremacist country, our laws and system of punishment should reflect that fact.
In a deeply racist country, public opinion should not allow the state to have complete control of the lives of its citizens.