The Barton case invites us to examine both what happens to executions during pandemics and the current state of death penalty politics in the United States. While an aberration during the current pandemic, Missouri followed the pattern of earlier health crises. But as my research on contemporary death penalty politics finds, the kind of issues raised in the Barton case have helped alter the state of capital punishment in the United States.
The covid-19 moratorium
Between Jan. 15 to March 5, five inmates were put to death: two in Texas, one each in Georgia, Tennessee and Alabama.
In March, as Texas prepared to execute John Hummel who was next up on that state’s death row, the Texas Department of Criminal Justice claimed to have procedures in place to protect witnesses and correctional personnel from the spread of covid-19. Execution witnesses would be screened for virus exposure just as department employees were before entering a prison unit.
But the Texas Court of Criminal Appeals was unpersuaded these procedures were adequate. The court “determined that the execution should be stayed at the present time in light of the current health crisis.” Since then, four other Texas executions have been postponed.
Other executions have been postponed for different reasons. Ohio Gov. Mike DeWine (R) put three executions on hold because of ongoing difficulties in obtaining drugs needed to carry out lethal injections. Tennessee’s planned execution of Oscar Smith was postponed after his lawyers said they had lost “critical time to work on his case because of the restrictions put in place to stop the spread of the coronavirus.”
Pandemics don’t usually stop executions
Those decisions are sensible under the current circumstances, but unusual from a historical perspective. In my study of the 20th century history of executions and execution methods, I found states stuck to their plans to put people to death during previous health crises, even when some of those executions were botched.
The so-called Spanish flu, from 1918 to 1920, killed more than 675,000 Americans, but capital punishment continued apace. Two hundred and thirty-six people were hanged, electrocuted or shot during those three years. Two of those executions were botched, one in Maryland, one in Delaware, when the drop used in the hangings proved insufficient to break their necks.
Fifty years later, from 1957 to 1958, another health crisis of epidemic proportions caused by a different strain of the flu resulted in 116,000 American deaths, but again executions went forward. Hanging, while on the way out in the United States, was used to kill six people. The gas chamber was used in 15 executions, and another 59 died in the electric chair. Three of those executions were botched.
There were no executions during the 1968 Hong Kong flu pandemic, which killed approximately 100,000 people in the United States. That year was the start of an unofficial moratorium on executions that led to the Supreme Court’s 1972 Furman v. Georgia decision, which temporarily halted use of the death penalty in the United States.
Swine flu, another epidemic, arrived in the United States in 2009. More than 12,000 people died. Yet 52 executions were carried out in 11 states. All but one were done by lethal injection, two of which were botched.
The Barton case and the changing landscape of the death penalty in the U.S.
Since the 2009 pandemic, the situation of the death penalty in the United States has changed considerably.
In the past decade, as my work and other scholarship notes, death sentences and executions have declined dramatically, as has public support for them. Much of this change comes because of concerns that capital punishment isn’t administered fairly or reliably, not because Americans have changed their minds about whether it’s a moral or appropriate response to heinous crimes.
Many of those problems were on display in the Barton case.
While Barton admitted he was at the trailer park on the evening of Kuehler’s murder, throughout the case he insisted he was innocent. In fact, he was convicted and sentenced to death only in the state’s fifth attempt to try him.
His first two trials ended in mistrials; some jurors were skeptical about the government’s reliance on a jailhouse snitch and contested blood splatter evidence. Appeals courts overturned his conviction twice, calling for new proceedings to determine whether he had been unfairly tried.
Last week, his lawyers convinced a federal district judge sufficient doubts remained both about Barton’s innocence and about whether a brain injury meant he was not competent to be executed. The court entered a 30-day stay.
On Monday the Eighth Circuit Court of Appeals lifted the stay and let Missouri carry out Barton’s sentence. The execution came two months after the country began an informal moratorium on carrying out the death penalty.
The continuing death penalty debate
Barton’s execution will satisfy neither side of the death penalty debate, as is so often true.
Death penalty supporters will offer it up as another example of procedural excess and delay in doing justice. As Supreme Court Justice Neil M. Gorsuch wrote last year, “Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.” Those who believe Barton deserved to die may also join Gorsuch in thinking that, “those interests have been frustrated in this case” because the execution was many times delayed.
Death penalty opponents will claim the United States might just have executed another innocent person.
Editor’s note: an earlier version misidentified Springfield as the Missouri state capital. We regret the error.
Austin Sarat (@ljstprof) is associate provost and associate Dean of the Faculty, William Nelson Cromwell Professor Jurisprudence & Political Science at Amherst College, and author of Gruesome Spectacles: Botched Executions and America’s Death Penalty (Stanford Law Books, 2014).