In an impromptu statement October 27 on the Pittsburgh synagogue shootings, President Trump said:
I think one thing we should is we should do is stiffen up our laws in terms of the death penalty. When people do this, they should get the death penalty, and they shouldn't have to wait years and years. Now, the lawyers will get involved, and everybody is going to get involved, and we'll be 10 years down the line. And I think they should stiffen up laws, and I think they should very much bring the death penalty into vogue. Anybody that does a thing like this to innocent people that are in temple or in church -- we had so many incidents with churches -- they should be -- they should really suffer the ultimate price. They should pay the ultimate price. I've felt that way for a long time. Some people disagree with me. I can't imagine why. But this has to stop.
I've felt that way for a long time, too, Mr. President. Now what are you going to do about it? It's been almost two years since your election, and you haven't done anything at all yet, as far as I can tell.
Tightening up the laws by enacting new federal statutes is not likely to happen. If the Democrats take control of the House of Representatives, as is highly likely, nothing good on the death penalty will come out of that body in the next Congress. You have already passed your window of opportunity as to new laws.
Nonetheless, we already have some good laws, passed in the wake of the Oklahoma City Bombing. We need to get cracking on enforcing them.
First, expedite the processing of the applications of Arizona and Texas to qualify under federal habeas corpus "fast track," Chapter 154 of Title 28. It has been almost a year since DoJ published notices for public comments on these applications. When the states provided further information, DoJ waited over six months before sending out requests for still further information. If this project had the priority it deserved, those additional requests would have been out in less than a month, and the process would have been completed by now. Once these applications are approved and the benefits start flowing, other states will apply as well, and this important reform will finally be implemented.
Second, in federal capital cases, insist that the district courts and courts of appeals give the collateral reviews the priority they are entitled to by statute. See 28 U.S.C. ยง 2266(a).
Third, the federal government needs to go full-force into solving the method of execution problem.
The importation of needed lethal injection drugs from Asia is being blocked by an incorrect decision of the D.C. Circuit. Under the Obama Administration, this decision was meekly accepted and not taken to the Supreme Court. We expected this to change under your Administration. It has not changed.
The drug portion of the Food, Drug, and Cosmetic Act is intended to ensure safe and effective drugs for medical treatment. Its purpose has nothing to do with administration of the death penalty, and the FDA declined to get involved in the use of drugs for that purpose. In Heckler v. Chaney, 420 U.S. 821 (1985), the Supreme Court confirmed that this was within the FDA's enforcement discretion. In Cook v. FDA, 733 F.3d 1 (2013), the D.C. Circuit decided, wrongly, that Heckler did not apply to imported drugs. The Obama Administration failed to seek Supreme Court review of this decision. As a result, states that cannot obtain the needed drugs from domestic suppliers (who have been pressured into cutting them off) also cannot import them from willing suppliers in Asia. They then turn to less desirable drugs, raising the danger of protracted and possibly painful executions with resulting litigation and delay.
The State of Texas has a collateral challenge going to this decision in the Southern District of Texas, Texas Dept. of Criminal Justice v. FDA, No. 17-1. Instead of expediting this litigation, the Government has been delaying it. There is absolutely no excuse for this. A stern directive to stop delaying and start expediting is in order.
For the long run, we need to get rid of lethal injection altogether. Some states have turned to nitrogen hypoxia as an alternative. This method requires little medical skills or supplies. The federal government should develop a protocol for this method and use it whenever the law allows.
These are all steps that can be taken without legislation to speed up the enforcement of the death penalty in both state and federal cases. Many victims of crime who have already waited too long for justice would like to see some action.
