ARI SHAPIRO, HOST:
For more on what this means, we turn now to Robert Dunham. He is executive director of the Death Penalty Information Center, a nonprofit organization that studies capital punishment.
Welcome to ALL THINGS CONSIDERED.
ROBERT DUNHAM: Thank you for having me on.
SHAPIRO: OK. We just heard from Carrie the resumption of executions is the opposite of what's happening at the state level. How do you explain the disconnect between what's going on in the states and what's going on federally?
DUNHAM: Well, what we're seeing across the country is a sustained decline in the use of capital punishment. But there's one twist to that, which is the death penalty is disappearing from whole parts of the country and eroding in others. But the areas in which it still exists, it's clinging fairly strong in some of those. And the question with the federal government was going to be - was it going to follow the path of the rest of the country, or was it going to start acting like an outlier, as we see in some of the counties and states that more aggressively pursue the death penalty. And it looks as though that the federal government is going to become an outlier.
SHAPIRO: And it doesn't seem to be a neat Republican-Democratic divide. I mean, it's been almost 20 years since this policy was in place.
DUNHAM: That's right. Over the course of - the last execution was in 2003. And over the course of the time, we've had both Republican and Democratic administrations. And over time, both used the death penalty less and less. So this is a deviation from the policies of both Republican and Democratic prior administrations.
SHAPIRO: To implement this policy, what kinds of processes does the Justice Department have to go through? Can they just snap their fingers and make this happen?
DUNHAM: No, they can't just say we're going to do it and do it. They have to go through a process of rulemaking. And it's called the Administrative Procedures Act.
SHAPIRO: When you say they have to go through a rulemaking period, what are those rules about? Is it the method of execution, just the fact that they're carrying out the death penalty?
DUNHAM: It is how much of what drugs, what order they're going to be administered if there's more than one. You know, it may be a single drug but multiple injections. So it's a thing that describes how that process works. They have to formally propose it. It has to go out for notice and comment, and then there's a period of response to that. And after that happens, it's also subject to court challenges.
SHAPIRO: And do you expect there to be court challenges?
DUNHAM: I would think that there would be, in part because there already is a lawsuit in which federal death row prisoners have challenged the method of execution. And the Justice Department was required to provide notification to those folks any time it was developing a new protocol. So that lawsuit's already in place. And I think that other prisoners who are not party to that lawsuit would now either attempt to join it or file their own challenges.
SHAPIRO: That being the case, is the Justice Department going to be able to implement this and begin executions by December, as they've announced?
DUNHAM: I think it's really questionable whether they'll be able to carry it out. If they do, I think it's only because we won't have had a thorough review of the policy. And that's one of the things I think is very troubling - because if you're going to have a death penalty, you want to dot every I, cross every T, make sure that we follow the rule of law. An expedited system doesn't give us that opportunity.
SHAPIRO: If you don't think they'll be able to get it done in time, why would they have announced it in such a definitive way as they did today?
DUNHAM: I think the government chose a particular set of cases because they think that they would enrage the American public. They chose a bunch of cases that involved children as victims or elderly victims. And the sense I get is that they selected cases that they thought would sell well to the public as a way of trying to pressure the legal process.
SHAPIRO: Robert Dunham is the executive director of the Death Penalty Information Center.
Thanks for speaking with us.
DUNHAM: My pleasure.
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