The federal government will reinstate the death penalty for the first time in nearly two decades, Attorney General Bill Barr announced Thursday.
Barr announced that he has directed the Bureau of Prisons to schedule the execution of five inmates over the next six months. Though the Justice Department has sought the death penalty in several high-profile cases, the federal government has not executed anyone in 16 years and has only put three people to death since 1988.
“Under administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals,” Barr said in a statement. “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.”
The move comes after Trump last year called to “bring back the death penalty.”
Though the death penalty has remained legal nationally and in 29 states, the number of executions have fallen from nearly 100 in 1999 to less than two dozen per year, according to the Death Penalty Information Center.
Support for capital punishment has fallen from a high of 80 percent in 1994 to 56 percent in 2018, according to Gallup. Just 31 percent of Democrats and 47 percent of independents said they believe the death penalty is applied fairly, compared to 73 percent of Republicans.
Nearly a decade ago, drugmakers in both the U.S. and major European nations stopped selling drugs used in executions to the federal government, forcing the government to rely on alternative means that can result in botched executions. Barr said in a news release on Thursday that he had issued a protocol that replaces the current three-drug cocktail used to sedate inmates in federal executions with the drug pentobarbital, a commonly used sedative.
The Supreme Court ruled in 2015 that the lethal injection was constitutional despite advocates’ concerns that inmates risked suffering excruciating pain as a result of the unreliable sedatives that were used.
In a dissenting opinion, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, argued that the court should examine “whether the death penalty violates the Constitution.”
Breyer wrote that “it is highly likely that the death penalty violates the Eighth Amendment,” which prohibits cruel and unusual punishment.
Breyer noted that there was evidence that innocent people had been executed and that many others were exonerated while awaiting their fate on death row. He also argued that convicts were sentenced to death arbitrarily and that many death sentences were the result of racial discrimination and political considerations. He added that no other major Western nation still had the death penalty.
Justice Antonin Scalia called Breyer’s opinion “gobbledygook” and wrote that “the suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others.”
There is no real evidence that the death penalty poses any real deterrent to crime, however, especially given that many states have seen violent crime rates fall after banning the death penalty.
A 2000 state-by-state analysis by the New York Times found that the homicide rate in states with the death penalty were 48 percent to 101 percent higher than in states without the death penalty. A 2012 study published by the American Economic Review found no deterrent effect in states that used the death penalty. A 2008 survey of leading criminologists found that only 5 percent believed the death penalty was an effective deterrent, compared to 88 percent who believe the opposite to be the case.
Worse yet, another study published by the National Academy of Sciences in 2014 found that more than 4 percent of people sentenced to death were innocent.