If you were given dominion over 50 souls and tasked with executing any 13 of them, how would you decide who to kill? A thread. https://www.nytimes.com/2021/02/18/opinion/federal-death-penalty.html?smid=tw-share

In 1972's Furman v. Georgia, SCOTUS found that the death penalty violated the constitutional ban on cruel and unusual punishment. Why? Because, justices wrote, the punishment is applied arbitrarily, capriciously, more a matter of fortune than a well-regulated justice system.

Their moratorium didn't hold, but the idea that capital punishment was repaired in the interim is incorrect. If the citizens of a state vote to ban the death penalty, a person convicted there can still receive it — if they accidentally, unknowingly happen to be on federal land.

Objections from local communities — including Native American tribes, who've had quite enough of the federal government executing their members — don't matter. Or rather: They could matter. Prosecutorial discretion is another factor in the arbitrariness of capital punishment.

Prosecutors can elect to pursue capital punishment in districts where it's legal, or they can elect not to do so. They don't owe anyone an explanation as to why one convicted murderer was sentenced to life and another very similar case resulted in death. It's their prerogative.

Then there's the problem of juries. SCOTUS has ruled that prosecutors can exclude people who object to the death penalty on juries in capital cases. This results in juries that are -- prior even to hearing the case -- "death-qualified," which turns out to be a curious sample.

Death qualified juries are, for instance, more likely to convict at large than other juries. This means a person facing the death penalty has a heightened chance of conviction simply because of the composition of the jury itself. How is that fair?

Juries are also much, much more likely to sentence a black person to death for killing a white person than any other racial perpetrator/victim combination. Black people who kill black people in extremely similar circumstances face much lower chances of being sentenced to die.

All of those factors stock our death rows. And they filled our federal death row, too, which meant that when Trump won in '16 and his DOJ busily set about replenishing the feds' supply of poison, decisions had to be made as to which of the inmates would be killed.

There still hasn't been a satisfactory explanation for why the 13 who were put to death were chosen. They weren't the longest-serving. Their crimes were neither the oldest nor the most recent nor the most deadly. They didn't all involve children, or sexual assault, or torture.

Nor were the inmates the most difficult prisoners on federal death row. Some, like Brandon Bernard and Corey Johnson, had spotless disciplinary records, and were well-liked by their wardens. As I reported on these killings, I asked the many attorneys I met: Why your client?

Nobody had an answer that could account for all 13. But I did hear a fairly compelling theory arise again and again: It almost looked like, multiple attorneys said, the feds had chosen to execute the people who had the best shot at commutation under another administration.

It makes some sense. Daniel Lewis Lee, the first to die, had some very vocal advocates — the surviving family members of the people he killed, who did not want him executed. Corey Johnson was clearly intellectually disabled. Lisa Montgomery was severely mentally ill.

Prosecutors who helped put Brandon Bernard on death row openly regretted the decision, and their arguments concerned the public. It's not difficult to imagine a particularly diabolical AG looking at these cases and thinking: Better get the hardest ones done fast.

Or maybe not. We don't know. We'll likely never know. But we know this: We live in a country where that kind of decision-making is legal and possible, where a matter as serious as life and death is left up to the intuitions, whims, prejudices of ordinary people.

It's not fair, and it certainly isn't justice. Right now, @AyannaPressley and @RepEspaillat have introduced legislation to abolish the federal death penalty. Biden should commute the remaining sentences, and his DOJ should instruct US attys not to seek any more capital sentences.

But only abolition will ensure that what just happened — thirteen Americans executed in a handful of months, during a devastating pandemic, no less — does not happen again. Now is the time. @POTUS, help us abolish the federal death penalty now.