Donald Trump is not only provoking fury among opponents in his race to complete a spate of federal executions in his last weeks in office. He is also rushing in the opposite direction from states across the US, which are increasingly rejecting the death penalty – as is the American public.
While a majority of US states maintain the death penalty, and a majority of the public still supports it, the numbers of prisoners being killed and the amount of public support for executions continues to shrink, while the numbers of states giving up the penalty is increasing, fast.
Ngozi Ndulue, senior director of research and special projects at the Death Penalty Information Center (DPIC), in Washington, DC, described the Trump administration's hasty series of executions since the summer "a spree" that is "breathtaking".
“The federal government has shown itself to be out of step with the states and out of step with history,” she told the Guardian.
More Americans now oppose the death penalty than at any point in more than half a century, according to a Gallup survey published last month. A majority of Americans still favour executions for criminals convicted of murder, but the share, 55 per cent, is at its lowest point since 1972, when 50 per cent said they supported the practice.
But the president and his attorney general, Bill Barr, revived federal executions last summer, after they had basically been on hold for 17 years, and are now rushing prisoners to the execution chamber.
“We have to bring back the death penalty. They have to pay the ultimate price. They can’t do this. They can’t do this to our country,” Donald Trump has said.
Five executions were scheduled between last Thursday and Trump leaving the White House on January 20th, making a total of 13 federal executions since July and cementing Mr Trump's legacy as the most prolific execution president in over 130 years.
Second man in two days
On Friday, the Trump administration put to death the second man in two days.
“I think the way to stop the death penalty is to repeal the death penalty,” Mr Barr said. “But if you ask juries to impose and juries impose it, then it should be carried out.”
In the past 10 years, 10 states have either abolished the death penalty or declared a moratorium on executions.
"The death penalty cannot be, and never has been, administered equitably in the state of Colorado, " Governor Jared Polis said after outlawing capital punishment in the state in March.
Colorado's move followed similar action in New Hampshire in 2019, Washington state in 2018 and, also since 2010, Delaware, Maryland, Connecticut and Illinois, while governors in California, Pennsylvania and Oregon declared a moratorium on executions, in a rush of action that means a total of 22 states and the District of Columbia now eschew the death penalty.
Next year, the Virginia legislature will consider legislation to repeal it there.
If that passes, it would mark a dramatic transformation for Virginia, which would advance from what the Washington Post called the state’s “dubious honour of being the first and most lethal executioner in the nation”.
It recorded an official execution by gunshot for treason in the Jamestown Colony in 1608 and since then has officially put to death more of its citizens than states such as Texas, Oklahoma and Florida that have been much more prolific executioners in the modern era.
Meanwhile, states that have the death penalty are using it less.
Texas, which has been the overwhelming modern powerhouse of US executions, put to death three prisoners this year. At its peak the state executed 40 people in 2000.
In its 2019 annual report the DPIC said 22 prisoners were killed by just seven states that year – a dramatic decline from the peak of 98 executions in 1999 and the lowest number since 20 were put to death three years before.
There were three federal executions between 1988 and 2019, a period covering both Republican and Democratic administrations.
"There is no precedent in the 20th or the 21st centuries" for either the volume of federal executions this year or the persistence in a transition period from one president to another, Ms Ndulue said.
And of the 25 states that maintain capital punishment, Ms Ndulue said that “less than 2 per cent of jurisdictions are responsible for more than half of the death sentences and executions” in the modern era. About a dozen states that issue the death penalty haven’t executed anyone in at least a decade.
There are many factors encouraging states to leave capital punishment to the past.
States that have abolished the death penalty in the 21st century have not seen a corresponding rise in murders. And over the length of a case, capital punishment is more expensive, in dollars, than life imprisonment.
The federal death penalty has also long been used disproportionately against people of colour. Murders where the victim was white are vastly more likely to involve execution, according to the DPIC.
“The way that the death penalty is allocated in the US is inextricable from our legacy of racial injustice,” Ms Ndulue said.
And the risks of putting the innocent to death are acute.
The DPIC cites exonerations that have happened to people even after decades on death row.
In recent years, botched lethal injections in several places and fierce rows about the ethics of supplying the chemicals used in the cocktails for such executions, and shortages of the chemicals, have helped to erode public support.
Finally, the spate of federal executions in 2020, which brings gatherings of officials, families, lawyers and media, has already increased the spread of coronavirus. And four of the five people on the execution list in December and January are Black Americans in a year of national protest over systemic racism.
MS Ndulue called it an “execution at all costs” strategy by Mr Trump that she found, in a word, “astounding”. – Guardian