The U.S. Department of Justice announced on Tuesday that it will be seeking the death penalty for Dylann Roof, the South Carolina man who killed nine black churchgoers last June. Roof will now face two death penalty trials, as South Carolina prosecutors have already said they will push for his execution.
The decision Tuesday is notable considering how infrequently the federal government uses the death penalty — since the reinstatement of the federal death penalty in 1988, only three criminals have been executed. Before that, the last federal execution was in 1963.
But the number of people facing the federal death penalty has increased dramatically in the last few decades thanks to one significant policy change. From 1988 to 1994, just two people were sentenced to death by the U.S. government. That’s because before 1994, the federal death penalty was limited to a very small number of rare crimes not covered by state criminal laws, like treason.
That changed in 1994, when President Bill Clinton’s Federal Death Penalty Act greatly expanded the list of offenses for which federal defendants can face the death penalty. There are currently 54 people on federal death row, sentenced after Clinton’s expansive crime bill. Roof would bring that number up to 55 if convicted.
Not only did Clinton’s Federal Death Penalty Act expand the practice to include mass murder and other specific types of killings like murder of a law enforcement officer and drive-by shootings, but it also included the potential charge for civil rights-related murders.
In a filing in U.S. District Court in Charleston Tuesday, federal prosecutors said they were seeking a death sentence for Roof’s “obstruction of exercise of religion by force resulting in death” and “use of a firearm to commit murder during and in retaliation to a crime of violence.” But they also listed several aggravating factors to justify the death sentence, including the fact that it was a racially motivated killing.
“Roof has expressed hatred and contempt towards African Americans, as well as other groups, and his animosity towards African Americans played a role in the murders charged in the indictment,” the court filing said.
The prosecutors made it clear that the mass murder alone did not justify a death sentence, but the aggravating factors — including the racial intent — made them seek the highest punishment available. But that punishment would likely not have been death before 1995.
After widening the scope of the federal death penalty drastically in 1994, Clinton then signed the Antiterrorism and Effective Death Penalty Act the next year, which went even further in expanding crimes eligible for federal execution. Because of those two pieces of legislation, Boston Marathon bomber Dzhokhar Tsarnaev is facing the death penalty even though Massachusetts abolished the practice in 1984, and Roof is facing the federal death penalty while facing the same sentence in South Carolina.
Democratic presidential candidate Bernie Sanders’ campaign condemned the federal government’s decision to seek the death penalty Tuesday. But Hillary Clinton has refused to comment on the sentencing thus far.
Since launching her campaign, Clinton has expressed support for the federal death penalty in limited circumstances — specifically for terrorists and mass murderers like Roof.
“Maybe it’s a distinction that is hard to support, but at this point, given the challenges we face from terrorist activities in this country that end up under federal jurisdiction for very limited purposes, I think it can still be held in reserve for those,” Clinton said of the death penalty during a March town hall event.
While Roof did commit a mass murder, few of the people sitting on federal death row were ever charged with the kind of “terrorist activities” Clinton says the death penalty should be reserved for. Many of the men and women sentenced under the 1994 legislation were black defendants convicted of killing just one white victim.
For example, Meier Jason Brown, a black defendant, was sentenced to death by a federal jury in 2003 after he murdered a 48-year-old white female during a robbery. And in 2007, Thomas Hager, also black, was sentenced to death by a federal jury for the drug-related murder of Barbara White. And Louis Jones, Jr., who was executed in 2003, kidnapped and sexually assaulted his one victim before killing her on a Air Force base.
Clinton’s stance may be out of step with the majority of the Democratic electorate, which is opposed to the death penalty. Research suggests that the federal death penalty is not a deterrent against terrorism or mass murder.
Clinton has apologized for other parts of her husband’s crime bill, but has not commented directly on the expansion of the death penalty.
“I think that it had some positive aspects to it,” she said when asked about the legislation last month. “I’m sorry for the consequences that were unintended and that had a very unfortunate impact on people’s lives.”