Recent Developments in Capital Punishment

Federal Death Penalty

In 1988, President Reagan signed the Anti-Drug Abuse Act. This leg­is­la­tion includ­ed a pro­vi­sion, some­times referred to as the ​“drug king­pin” death penal­ty, which cre­at­ed an enforce­able fed­er­al death penal­ty for mur­ders com­mit­ted by those involved in cer­tain drug traf­fick­ing activ­i­ties. The death penal­ty pro­vi­sions were added to the ​“con­tin­u­ing crim­i­nal enter­prise” statute first enact­ed in 1984, 21 U.S.C. SS 848. The drug traf­fick­ing ​“enter­prise” can con­sist of as few as five indi­vid­u­als, and even a low-rank­ing ​“foot sol­dier” in the orga­ni­za­tion can be charged with the death penal­ty if involved in a killing.

In 1994, President Clinton signed the Violent Crime Control and Law Enforcement Act that expand­ed the fed­er­al death penal­ty to some 60 crimes, 3 of which do not involve mur­der. The excep­tions are espi­onage, trea­son, and drug traf­fick­ing in large amounts.

Two years lat­er, in response to the Oklahoma City Bombing, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The Act, which affects both state and fed­er­al pris­on­ers, restricts review in fed­er­al courts by estab­lish­ing tighter fil­ing dead­lines, lim­it­ing the oppor­tu­ni­ty for evi­den­tiary hear­ings, and, absent nar­row cir­cum­stances, allows only a sin­gle habeas cor­pus fil­ing in fed­er­al court. Proponents of the death penal­ty argue that stream­lin­ing the process will cost less, lessen lengthy appeals, and achieve final­i­ty for the vic­tims and their fam­i­lies. Opponents fear that quick­er, more lim­it­ed fed­er­al review will increase the risk of exe­cut­ing inno­cent defen­dants (Larkin, 2022).

The first fed­er­al exe­cu­tion fol­low­ing the rein­state­ment of the fed­er­al death penal­ty in 1988 took place in June of 2001, with the exe­cu­tion of Timothy McVeigh. Two addi­tion­al fed­er­al exe­cu­tions, anoth­er in June 2001 and one in March 2003, occurred dur­ing President George W. Bush’s admin­is­tra­tion. Thirteen fed­er­al exe­cu­tions were car­ried out in a six-month peri­od between July 2020 and January 2021 dur­ing President Donald Trump’s admin­is­tra­tion. In total, six­teen exe­cu­tions by lethal injec­tion have been car­ried out by the fed­er­al gov­ern­ment since the rein­state­ment of the fed­er­al death penalty.

International Abolition

In the 1980s the inter­na­tion­al abo­li­tion move­ment gained momen­tum and new treaties sup­port­ing abo­li­tion were draft­ed and rat­i­fied by many coun­tries. Protocol No. 6 to the European Convention on Human Rights and its suc­ces­sors, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, and the United Nation’s Second Optional Protocol to the International Covenant on Civil and Political Rights, aim­ing at the abo­li­tion of the death penal­ty, were cre­at­ed with the goal of mak­ing abo­li­tion of the death penal­ty an international norm.

Today, the Council of Europe requires new mem­bers to under­take and rat­i­fy Protocol No. 6. This has, in effect, led to the abo­li­tion of the death penal­ty in Eastern Europe, where only Belarus retains the death penal­ty. For exam­ple, the Ukraine, for­mer­ly one of the world’s lead­ers in exe­cu­tions, has now halt­ed the death penal­ty and has been admit­ted to the Council. South Africa’s par­lia­ment vot­ed to for­mal­ly abol­ish the death penal­ty in 1995, after ear­li­er being declared uncon­sti­tu­tion­al by the Constitutional Court. In addi­tion, Russian President Boris Yeltsin signed a decree com­mut­ing the death sen­tences of all the pris­on­ers in Russia in June 1999 (Amnesty International and Associated Press, 1999). Between 2000 and 2022, 38 addi­tion­al coun­tries abol­ished the death penal­ty for all crimes, 6 more abol­ished the death penal­ty for ordi­nary crimes, and 1 abol­ished a manda­to­ry death penal­ty for murder.

In April 1999, the United Nations Human Rights Commission passed the Resolution Supporting Worldwide Moratorium on Executions. The Resolution calls on coun­tries which have not abol­ished the death penal­ty to restrict its use of the death penal­ty, includ­ing not impos­ing it on juve­nile offend­ers and lim­it­ing the num­ber of offens­es pun­ish­able by death. Ten coun­tries, includ­ing the United States, China, Pakistan, Rwanda and Sudan vot­ed against the res­o­lu­tion. In October 2021, the UNHRC adopt­ed the res­o­lu­tion once again, with 29 mem­ber states in favor of it, 12 vot­ing against it, and 5 abstain­ing from the vote. 

The United Nations General Assembly (UNGA) first adopt­ed a res­o­lu­tion for an inter­na­tion­al exe­cu­tion mora­to­ri­um in December 2007. As of December 2022, the UNGA again adopt­ed a res­o­lu­tion, co-spon­sored by 125 UN mem­bers states, call­ing for a glob­al mora­to­ri­um on the use of the death penal­ty. Moratorium res­o­lu­tions have there­after been intro­duced in each UNGA ses­sion since 2007, where the ini­tial res­o­lu­tion had 104 sup­port­ing mem­bers. The United States has vot­ed no on all resolutions.

Lethal Injection

Lethal injec­tion has been the most com­mon method of exe­cu­tion in the mod­ern era of cap­i­tal pun­ish­ment in the United States. Between the resump­tion of exe­cu­tions in 1977 and August 31, 2018, 1,306 exe­cu­tions (near­ly 90%) used lethal injec­tion. When states first turned to using drugs in exe­cu­tions, many did so in the belief that lethal injec­tion would be more humane than the more vis­i­bly grue­some meth­ods it replaced: hang­ing, elec­tro­cu­tion, gas, and fir­ing squad. Other states adopt­ed lethal injec­tion to avoid legal chal­lenges to the con­sti­tu­tion­al­i­ty of their prior methods.

Despite states’ pur­port­ed goal of ensur­ing more humane exe­cu­tions, schol­ars have esti­mat­ed that more than 7% of lethal-injec­tion exe­cu­tions in the U.S. through 2010 were botched. Beginning in 2011, as states have exper­i­ment­ed with new exe­cu­tion drugs, reports of prob­lem­at­ic exe­cu­tions have notice­ably increased. At the same time, states have enact­ed laws or adopt­ed con­sti­tu­tion­al amend­ments that pre­vent the pub­lic from obtain­ing infor­ma­tion about lethal injec­tion drugs and sup­pli­ers. (For more infor­ma­tion, see DPIC’s report Behind the Curtain: Secrecy and the Death Penalty in the United States.)

Legislative bod­ies in at least 13 states have enact­ed secre­cy statutes relat­ed to cap­i­tal pun­ish­ment that con­ceal details about their exe­cu­tion process and pro­to­col. In 2015, the American Bar Association passed a res­o­lu­tion urg­ing ​“each juris­dic­tion that impos­es cap­i­tal pun­ish­ment to ensure that it has exe­cu­tion pro­to­cols that are sub­ject to pub­lic review and com­men­tary and include all major details regard­ing the pro­ce­dures to be fol­lowed, the qual­i­fi­ca­tions of the exe­cu­tion team mem­bers, and the drugs to be used.” Many phar­ma­ceu­ti­cal devel­op­ers, includ­ing Pfizer and Merck, have pub­licly opposed the use of their prod­ucts in exe­cu­tion pro­to­cols, empha­siz­ing the goal of their prod­ucts is to improve and save the lives of their patients. 

As access to com­mon­ly used exe­cu­tion-drugs has become increas­ing­ly restrict­ed, states have imple­ment­ed alter­na­tive drug pro­to­cols and com­bi­na­tions. Midazolam, a ben­zo­di­azepine (seda­tive) is the first drug used in many three-drug exe­cu­tion pro­to­cols. This first drug is intend­ed to place the pris­on­er in coma-like state, unable to out­ward­ly express the pain caused by the sec­ond drug, a par­a­lyt­ic, or the third drug, which caus­es car­diac arrest. In more than 60% (7 of 11) of the mida­zo­lam exe­cu­tions in 2017, eye­wit­ness­es report­ed pris­on­er reac­tions rang­ing from labored breath­ing to gasp­ing, heav­ing, writhing, and clench­ing fists, that sug­gest they were experiencing pain.