Crime, Punishment, and Federalism


Monday, August 10, 2020

Justice has been patiently waiting to be delivered in the federal death row system for 20 years. In the earliest hours on July 14, the Supreme Court placed the final stamp on a package dispatched mere hours later in the execution of federal prisoner Daniel Lewis Lee. He was the first federal prisoner to be executed in 17 years.

In 1999, Mr. Lee was convicted in federal court of three counts of murder in aid of racketeering. His victims were a family of three in Arkansas. This included a mother, father, and their 8-year-old daughter. Since his sentencing, he sat waiting on death row. This was during an informal moratorium of federal capital punishment that began in 2003.

At issue in the case of Barr v. Lee was the method the federal government executes those sentenced to death. Last year the Department of Justice announced that it would transition to a single-drug lethal injection—primarily the drug pentobarbital, a sedative that slows and mortally stops the convict’s nervous system. The announcement also directed the Bureau of Prisons to schedule the executions of “death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society—children and the elderly.” Mr. Lee’s execution marked the first time that the federal government used pentobarbital to carry out such a punishment. 

Legal counsel for Mr. Lee and other death-row inmates like him launched a last-minute hail-mary appeal to further delay execution. The District Court, on July 13, ruled in their favor and ordered a preliminary injunction on the grounds that the use of pentobarbital violates the Eighth Amendment’s promise against cruel and unusual punishment. The plaintiffs presented expert testimony that contradicted the purported innocuity and painlessness that pentobarbital subjects the convicted to.

In the Supreme Court’s decision they vacated the District Court’s injunction. They did this on the grounds that they have already heard similar arguments in a previous case that was decided last April. This case had approved the drugs’ use for capital punishment in other states. To rule in favor of the plaintiffs in Barr v. Lee would mean overturning precedent that is barely more than a year old.

The point of this piece is not to further exhaust the arguments for or against capital punishment—or whether it is an effective deterrent to crimes of passion. Nor is it to adumbrate how a sensible originalist interpretation of the Eighth Amendment renders the practice constitutional. Rather, it is to highlight and applaud one sentence from the end of the Court’s decision from early Tuesday morning:

“It is our responsibility ‘to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously,’ so that ‘the question of capital punishment’ can remain with ‘the people and their representatives, not the courts, to resolve.’” 

It is fair to assert that capital punishment is not an issue at the forefront of the American mind. A presidential candidate’s position on the matter will not entirely make or break their chances of winning an election. There are a plethora of other more interesting topics that will dominate the debates in this election cycle. This is still a divisive issue when it becomes nationalized with 56% of Americans in favor and 42% opposed

Perhaps capital punishment is not at the front of our collective minds because its legislation has largely been left to the states. Some states have legislated it out of existence. Some have declared moratoriums on it. Nebraska was one of those states whose representatives voted for abolishment. Less than a year later, Nebraskans voted to reinstate it. This remains a difficult and ambiguous question of crime and punishment. 

Each state is allowed the autonomy to decide for themselves so long as their solutions remain constitutional. This is not a flaw, this is federalism. This is the way our system is supposed to work. 

Federalism allows for states to have different approaches to the law and, indeed, capital punishment. This allows the citizens of smaller jurisdictions to choose their own way. They are not subject to a broad, procrustean brush controlled by the federal government. Not all questions of public policy are unambiguous. In a federalist system, citizens reap the joys and benefits of local autonomy and freedom of choice without the worry of capricious power grabs from a superior system.  

This decision was not whether to resume federal executions. That was a decision made last year by the DOJ. This was a case that affirmed the benefits of federalism and the predictability of stare decisis. The question of capital punishment remains “with the people and their representatives.” 

Let the decision stand. Let the states be free. Let justice be done. However that may be.

Nate Gorman is Editor-in-Chief of Lone Conservative. He is a senior in his third year at Towson University in Maryland where he studies politics and business. Last summer Nate worked for the Federalist Society as a research associate and is planning on going to law school sometime after he graduates.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Nathan Gorman

Nate Gorman is Editor-in-Chief of Lone Conservative. He is a senior in his third year at Towson University in Maryland where he studies politics and business. Last summer Nate worked for the Federalist Society as a research associate and is planning on going to law school sometime after he graduates.

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