Imagine a serious punishment being carried out because very soon that sentence would be commuted by an incoming president. Inflicting that penalty in such a rush would be cruel. Imagine also if that punishment was rare. In particular, if the penalty, until its recent resumption, had not been used for 17 years—and only used three times in the previous 44. That would not be a usual punishment; it would be, by definition, unusual. And imagine if this recently resumed and rushed punishment was the ultimate penalty: the capital sentence of death. By the normal meanings of words, the imposition of such a penalty would be cruel and unusual.
And this is what has happened recently in the US. The federal government resumed executions last summer in the run-up to the presidential election. Although some individual states still carry out executions, such punishments are exceptional at the federal level. But a total of 13 judicial killings took place from July to January, of which six were after November’s election. The federal government deliberately killed six people who would still be alive, and would have known they would still be alive, if they had survived to the inauguration on 20th January of a new president opposed to the death penalty.
As the Democratic candidate Biden ran on a pledge of abolishing capital punishment, though he supported it earlier in his career, and now maintains that those on death row should have life sentences without remand or parole. Now, as president, he is expected to commute the sentences of federal prisoners facing execution. This means the Department of Justice knew this change of policy was coming, but pushed on anyway, aware that Trump would not commute the sentences.
The timing is significant. These new federal executions were not spread out evenly over the four years of Trump’s administration, but packed into the final six months. This can only be explained by the pursuit of political advantage. It suited Trump politically to revive federal executions and, even when he lost the election, to carry out the remaining sentences anyway to conserve political capital. People have been deliberately killed by the US government because it was in the interests of one politician seeking to avoid losing office and to play to his political base. There is a word, of course, for the wilful taking of life for wrongful purpose.
On the face of it, the US constitution expressly prohibits “cruel and unusual punishments.” But legal phrases often do not mean the same as their natural and plain meanings. In a succession of US Supreme Court decisions, the reference to “unusual punishments” has hardened into an almost circular definition, meaning in effect that if a punishment takes place then it is not unusual, and the cruelty that is prohibited is in the manner of the lethal act only, not its timing. The recent executions may be cruel and unusual punishments, but they are not so for legal purposes.
The law, however, is one thing. The politics is another. The deliberate killing of seven people by the government has been, in effect, a campaign tactic. People had to die so votes could be won (or not lost). Of course, politicians have long campaigned on their general support or opposition to capital punishment. But that is different from having a campaign grid of executions to complement rallies and debates. Particular executions have been politicised before—but the July to January killing spree is on a different scale.
Not long ago it seemed countries were moving on from judicial murders. The only nation in Europe that still permitted capital punishment was Belarus. Turkey had abolished it, even Russia had in practice ceased official executions. Many American states had either abolished capital punishment or stopped using it. In the G7, the killing of convicts seemed to be shrinking back to just Japan and some southern US states. This in turn allowed the western world to tut loudly at nations that executed their own prisoners. “Human rights concerns” could be earnestly raised and condemnations could be made in ever-so-diplomatic language. International human rights seemed to be a “thing” and western governments appeared to be leading by example.
But the rise of populist authoritarian nationalism—for which there is also a word—is the negation of this temporary liberal consensus. With Trump’s executions, the toxic politics goes further than a mere assertion of illiberalism. This is not just support of the restoration of capital punishment, it is the exploitation of individual executions as a cynical political device.
This may not be limited to the US. The Turkish government wants to bring back capital punishment, though this would require the consent of the legislature. The Home Secretary of the UK was a supporter of the death penalty, although the Home Office has dismissed a claim that civil servants had been asked to scope out a policy paper on it as “untrue and unsubstantiated.” Only membership of the EU and/or the European Convention on Human Rights is preventing some politicians in Europe from bringing back executioners.
The Trumpian mixture of nastiness and hyper-partisanship, where nothing—however contrary to constitutional norms and human rights—is beyond political exploitation, may go the way of Trump himself. Perhaps liberalism will return. But it may be instead that liberalism was the aberration, and that Trumpism does not go away. Trumpism may be cruel but we can’t rely on it remaining unusual.
