DOJ plans to "strengthen" the federal death penalty — but only three people are on death row

DOJ seeks to expand federal methods of execution to include the firing squad. Also: Fifth Circuit rejects challenge to Texas's criminal immigration enforcement law. And: Trump's IRS suit hits a snag.

Acting Attorney General Todd Blanche announced on Friday that the Justice Department was reinstating the lethal injection death penalty protocol adopted during the first Trump administration and that he was directing the Bureau of Prisons to take steps to expand the protocol to include other methods of execution “such as the firing squad.“

In an accompanying report, the Justice Department’s Office of Legal Policy, in addition to the firing squad, also recommended the inclusion of electrocution and “lethal gas" (i.e., nitrogen suffocation) in the expanded protocol.

Referencing lethal injection drug access problems and related lethal injection drug litigation, the report stated:

A DOJ spokesperson did not respond to a request for comment about whether Blanche was, in accordance with the OLP report, directing BOP to include all three alternative methods or the timeline for when the expanded protocol was to be prepared and adopted.

Among other plans cited in the news release accompanying the report, Blanche also relatedly “[d]irected BOP to examine relocating or expanding federal death row or constructing an additional execution facility to permit additional manners of execution.“

The effort to beef up the death penalty is in accord with President Donald Trump’s longtime aggressive support for the death penalty, the 13 executions carried out in the last six months of his first term, and his day-one executive order in his second term “restoring the death penalty.”

And though Trump, Blanche, and others can take actions to make the federal government “more pro-death penalty,” there is always the underlying reality that former President Joe Biden commuted the death sentences of all but three people on federal death row.

In fact, much of the “report” is actually more of a political document — containing, as it does, a section going after Merrick Garland’s tenure as attorney general: “The Department Abandoned Its Obligation to Seek and Implement Capital Sentences.“

Notably, the report completely ignores the fact that the Justice Department during the Obama administration did not carry out any executions. This happened, primarily, because there was a de facto moratorium due to the lack of access to the execution drugs allowed under the federal execution protocol in place at the time. In addition to that, though, then-President Barack Obama also called for a death penalty review during his second term that, while ultimately coming to nothing, did have the effect of ending the possibility of DOJ carrying out any executions while Obama remained in office.¹

But, the point of the report was, like most things during Trump’s second term, to present a picture that opposes Biden and those who worked in his administration.

The three people left on the federal death row are Dzhokhar Tsarnaev, sentenced to death for murders committed in the Boston Marathon bombing; Dylann Roof, sentenced to death for murders committed at Emanuel African Methodist Episcopal Church in South Carolina; and Robert Bowers, sentenced to death for murders committed at the Tree of Life Synagogue.

Although there are others facing death penalty charges, the bottom line is that there will be very few executions in the second Trump administration, regardless of how much Blanche and whoever might come after him do to try and “strengthen” the federal death penalty.

And yet, Trump’s first term serves as a reminder that when whatever comes after Trump eventually comes, strong action must be taken to reverse whatever dangerous inhumanity Trump, Blanche, and others put in place now.

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Fifth Circuit tosses challenge to Texas’s criminal immigration law

At the end of the day Friday, the U.S. Court of Appeals for the Fifth Circuit issued a 10-7 en banc ruling that would allow Texas to enforce S.B. 4, its criminal immigration law.

In the ruling from Judge Jerry Smith, a Reagan appointee, on behalf of 10 Republican appointees on the appeals court, he held that the organizations and county left suing over the law — after the United States dropped its lawsuit following President Donald Trump’s return to office — lacked standing to challenge the law. As such, the court held that the preliminary injunction blocking the law is to be vacated.

Smith highlighted that, because of the majority’s standing decision, the court was ruling “without addressing the merits of the preemption claim” that had formed the basis of earlier decisions blocking the law in light of Arizona v. United States, a 2012 U.S. Supreme Court decision that had blocked portions of an Arizona immigration law as being preempted by federal law.

Judge James Ho, a Trump appointee desperately waving his hands so that Trump will see that he would really like a seat on the U.S. Supreme Court, wrote a solo concurring opinion — meaning none of the 17 judges on the far-right court joined him — defending Texas’s “war power defense“ and spilling ink on wildly racist claims.

“There is broad consensus among national security scholars and experts that countries deliberately weaponize mass migration to harm other countries just as much as conventional arms,“ Ho wrote.

Luckily, again, even on the Fifth Circuit, no one joined him.

However, six judges joined another Trump appointee, Judge Andrew Oldham, in addressing the preemption claim that Smith sidestepped (mostly). Oldham found that the Texas law is not facially preempted, and also wrote about “the many ways Arizona is not to the contrary.“

As Aaron Reichlin-Melnick noted, it is key that Oldham’s ruling on preemption was not supported by a majority of the Fifth Circuit on Friday (although, as the dissenters noted, there was language in the majority opinion skeptical of the preemption argument). In addition to Smith, however, Judges Catharina Haynes, a George W. Bush appointee, and Cory Wilson, a Trump appointee, did not join Oldham’s ruling. (Both Haynes and Wilson have differentiated themselves from the furthest-right members of the court at times, including in an earlier Texas versus U.S. immigration-related case.)

Seven judges dissented from Smith’s ruling, including two Republican appointees: Judges Priscilla Richman and Leslie Southwick, both George W. Bush appointees.

Richman wrote the lead dissent for all seven, including the five Democratic appointees on the court, finding that “[a]t least one of the plaintiffs“ have standing and, on the merits, “The Arizona decision remains controlling, and the immigration laws Texas has enacted are preempted by federal law.“

The majority and two concurring opinions took up 36 pages. Richman’s opinion runs 103 pages.

Judge James Graves, an Obama appointee, wrote a second dissenting opinion on behalf of all of the dissenters except Southwick, focused on the standing issues — and his concerns about the majority’s treatment of the plaintiffs in the case.

“We should not oversimplify a party’s injury, nor should we oversimplify controlling caselaw,” he wrote. “The majority does both here, with troubling consequences.”

Finally, Judge Stephen Higginson wrote a dissent joined by all of the dissenters except Graves, focused on how the standing question merges with the preemption questions.

“I write separately to highlight that Texas’s Supremacy Clause violation is indivisible from plaintiffs’ injury,“ he explained.

With Friday’s decision, however, the Texas law will be able to be enforced absent further court action — Arizona notwithstanding — and the harm would befall these organizations, many immigrants and others who could get caught up in S.B. 4 enforcement efforts, and more.

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Trump’s self-dealing IRS suit hits a snag

1. Of course, Obama did not commute death row, as some had called for even then, leaving the people on death row when Trump’s term began and allowing for the Trump administration’s execution spree at the end of his first term.