After the Justice Department released a report Friday to “Restore and Strengthen the Federal Death Penalty,” the national and international public rightly focused on the DOJ’s recommendation to bring back the firing squad as an execution method. The firing squad is a particularly brutal way to put someone to death. Unlike lethal injection, which seeks to mask the horror it inflicts on the executed, the firing squad turns execution into a spectacle of cruelty for those who witness it.
The firing squad is a particularly brutal way to put someone to death.
But the first mention of a firing squad appears on page 30 of Acting Attorney General Todd Blanche’s 52-page document. The parts of the report that precede and follow the first mention of that execution method are even more troubling. There, we find the DOJ whitewashing the racism and arbitrariness that have long characterized the federal death penalty and laying out a plan to dramatically curtail the rights of people held on death row.
As much as death penalty opponents are right to call out Blanche and the DOJ for embracing the barbarity of the firing squad, they need to also highlight the department’s seeming eagerness to kill people, its dismissal of evidence that the death penalty is unfairly applied and its complete disdain for the previous administration’s capital punishment record.
Indeed, the report is mostly a political hit job on former President Joe Biden from a White House that remains fixated on trying to discredit him and his administration. While seeking to revive federal executions, it devotes page after page to attacking the former president and former Attorney General Merrick Garland. It takes Garland to task for scaling back federal death penalty prosecutions, imposing a moratorium on executions and recommending that Biden commute the sentences of 37 of the 40 people on the federal death row. As for those commutations, the report accuses Biden of doing great damage “to the rule of law itself.”
That’s pretty rich coming from an administration that has done so much to hollow out the meaning and practical effect of the rule of law.
In its report, the DOJ devotes 15 pages to the history of capital punishment in the U.S.: five pages to the years 1789 to 2021 and 10 pages to Biden’s single term. Though its authors don’t acknowledge it, this disproportionate focus on the alleged errors of former Attorney General Garland and the president he served suggests that Trump and his allies want to increase the number of executions for political reasons.
Apparently, in the eyes of the Trump administration, Garland’s worst sin was his direction to the Department of Justice that persons accused of capital crimes and those who are awaiting execution be treated “fairly and humanely.”
The well-documented defects of the federal death penalty aren’t even mentioned in the Justice Department report.
The well-documented defects of the federal death penalty aren’t even mentioned in the Justice Department report. But it is clear that race plays a troubling role in federal executions just like it does in state executions.
Data compiled by the Death Penalty Information Center shows that from 1989 to June 2024, “73% of individuals authorized for federal capital prosecution were people of color.” In addition, “Of all the people federally sentenced to death, 60% (48 out of 80) have been people of color. The overrepresentation of non-white defendants persists despite the Department of Justice’s commitment to a ‘race blind’ approach to reviewing and approving capital prosecutions.”
It is clear that the victim’s race matters, too. As the American Civil Liberties Union has rightly observed, “By continuing to authorize the death penalty disproportionately for cases with White victims, the federal government is sending the intolerable message that it values the life of a White person more than the life of a person of color.”
The death penalty’s discriminatory application, along with well-documented instances of false convictions in capital cases, require that all capital cases be carefully scrutinized. You would never know that from reading the Justice Department report.
Quite the opposite.
The report recommends that the department “examine existing Supreme Court precedent to identify whether certain decisions, especially regarding categorical exemptions for certain crimes or defendants, are inconsistent with the 8th amendment.” The one example it offers is a Supreme Court case that held that the death penalty is unconstitutional “‘for the rape of a child where the crime did not result, and was not intended to result, in death of the victim.’”
Moreover, the Justice Department report wants to expedite appellate review in capital cases and to “prevent capital defendants from attempting to delay their executions by filing” what it calls “meritless legal challenges.”
The Trump Justice Department’s desire to bring back the firing squad should shock and offend every American. In comparison with other execution methods, the firing squad has not been used very often. Texas A & M’s Michael Conklin offers an explanation: “Hurling projectiles toward an inmate in the hopes of causing cardiac failure, asphyxiation, or some other condition that will result in death, is far from an exact science.” And when it has been used, as South Carolina Professor Mark Smith told The Associated Press last year, it has created “a vision of terror.”
But whatever its preferred execution method, all Americans should be offended by this administration’s politically motivated agenda to short-circuit reviews of death cases in a system that’s notoriously plagued by racial discrimination and other miscarriages of justice.
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College.