The Justice Department is planning to start executing federal prisoners on death row. Attorney General William Barr announced the plan today saying it was time to end the almost 20-year hold on federal executions.

“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Barr said in a news release while also noting executions would start in early December. “Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The federal government last executed someone in prison in 2003 when the public perception of capital punishment was much different.

“This is really a move away from where the rest of the country is,” Conservatives Concerned About the Death Penalty National Manager Hannah Cox said in an interview over the changing mood of the country on executions. “We’re increasingly seeing the death penalty wane in the country. New death sentences are down 60% since 2000. Last year was the fourth year in a row the country carried out fewer than 30 executions. All 25 of those were in only eight states and more than half of them were in Texas, so not only is usage down it’s highly concentrated. Of the 25 states that still have the death penalty over a third of them have not used it in a decade or more.”

There were three states in the past year which decided to either end the death penalty outright or put a moratorium on all executions. California Governor Gavin Newsom issued the moratorium via executive order in March; however, convicted killers can still be sent to death row. Washington state’s Supreme Court said the death penalty was cruel and unusual punishment last year, citing a report which looked at the racial aspects of death penalty cases in the state.

The New Hampshire decision to repeal the death penalty is more interesting. Six of the co-sponsors were Republicans. Four Republican Senators voted in favor of the veto override. However, it should be a 5-5 split because one Senator decided to change his vote. There were also 26 Republicans in the New Hampshire House who decided to vote in favor of the repeal. This does show Republicans are starting to change their mind about capital punishment.

“We had eleven states with Republican-sponsored bills to repeal the death penalty this year alone,” Cox declared. “And so, as a whole, the federal government taking this action is really backwards and just totally antithetical to where the rest of the country is moving on this issue. And I think it’s not a good move at all.”

Cox has a mix of reasons for not supporting the death penalty, but points out the major issue is the fact it costs way too much.

“It’s not because it takes too long it’s because the trial itself is that much more expensive,” she said while pointing out locking people up for the rest of their lives without parole is much cheaper. “So right out the gate if you pursue the death penalty you’re spending a lot more taxpayer dollars on that case than you would on any other. That’s not only wasteful considering the death penalty is not a deterrent, it’s an opportunity cost we’re not spending on programs that actually do work to deter crime.”

The national homicide clearance rate is 55% which means there’s plenty of murders which aren’t being solved. It’s possible the money used to prosecute death penalty cases could be re-directed to either sheriff’s budgets or just cut and returned to the taxpayers in the form of reduced taxes. It’s something to consider before demanding every capital murderer get strung up, put before a firing squad, sent to the chair, or put down via a drug cocktail.

There’s no doubt the five people slated to be put to death by the Justice Department have committed horrific murders. Yet, it still needs to be asked whether it should be up to the federal government to put these five to death. The Constitution mentions three crimes: Piracy (Article I, Section 8), Counterfeiting (Article I, Section 8), and Treason (Article III, Section 3). Even the Crimes Act of 1790 focused on crimes which were either on the high seas or on property solely under the jurisdiction of the United States (ie a fort or a port).

Only one person on Barr’s list of prisoners set for execution committed a crime on strictly on federal property. Only one person on the list crossed state lines, while prosecutors played legal gymnastics to make sure two others ended up on death row. This should say something about whether it’s up to the federal government to decide whether they are executed.

“For the presumption is, that every offence committed within the body of any state, is an offense against that state only,” St. George Tucker wrote in his analysis of The Constitution in 1803. “[A]nd that the state courts have the sole and exclusive cognizance and punishment thereof, unless it be shewn, that the federal constitution, or some act of congress made in pursuance of it, have altogether divested the state courts of jurisdiction over the subject.”

Tucker is talking about the necessary and proper clause. Is it really necessary for the federal government to put civilians on death row when they have not committed a crime on federal property? The answer appears to be no, and Barr is in error for reinstating it.