ROBERT SIEGEL, host: Fifty-eight people in the U.S. are on federal death row. But for now, none of them appears likely to be executed, at least not while President Obama is in office. The Justice Department is reviewing its lethal injection protocols because of a shortage of a key drug. And authorities have backed away from setting execution dates while that study is under way.
NPR's Carrie Johnson has this report on the death penalty in the Obama era.
CARRIE JOHNSON: Over the last few years, a quiet revolution has overtaken the death penalty debate. Like many trends, this one started in the states and moved to the federal level. Death penalty expert David Bruck.
DAVID BRUCK: But I think it's fair to say that the federal government seeks the death penalty less often now than it did five or 10 years ago. But that's simply part of a national trend.
JOHNSON: Just consider, Bruck says, a state quite close to the seat of national government.
BRUCK: Virginia, which is the state that's executed the second largest number of people since the death penalty came back in the 1970s, has only added one new defendant to death row in the last three and a half years.
JOHNSON: And among those already under sentence of death, a lot fewer are actually being executed. One reason for that is a shortage of sodium thiopental, one of the main drugs that states and the federal system use in executions. The federal prison system told a judge last month they're still working through changes to the execution protocol because of that drug shortage, and the changes aren't final.
Until then, death row inmates like James Roane - convicted of taking part in gang murders in Richmond, Virginia, in the 1990s - won't get a new execution date.
Paul Enzinna is a lawyer for Roane. He's suing the prison system.
PAUL ENZINNA: The issue at the heart of our lawsuit is that - the question of the risk that the inmates being executed will suffer unnecessary pain, and that that is a violation of the Eighth Amendment.
JOHNSON: The Eighth Amendment, which prohibits cruel and unusual punishment. That lawsuit is on hold while the court waits to hear about changes the federal prisons may make to the lethal injection protocol. The last federal execution happened in 2003.
But not everything related to the federal death penalty is stuck in neutral gear. Last month, after more than two years of study, the Justice Department adjusted the directions it gives federal prosecutors who want to seek the death penalty.
The changes didn't get much attention, but they represent a turnaround in two main areas. First, Bruck says...
BRUCK: This administration is much more willing to listen to what the local prosecutors, who actually have to prosecute the cases in court, are saying about when the death penalty should be sought.
JOHNSON: So federal officials in Washington are consulting more with prosecutors across the country. That follows a controversy from the George W. Bush presidency, when Attorney General John Ashcroft sometimes overruled the decisions of U.S. attorneys who chose not to seek the death penalty.
Richard Dieter leads the Death Penalty Information Center. He says the change makes sense.
RICHARD DIETER: The federal government should be very cautious about, you know, intruding on areas that have traditionally been under state control, and where it's the conscience of the community that determines this.
JOHNSON: The Obama Justice Department made another significant change. Again, David Bruck.
BRUCK: This administration is much less likely to seek the death penalty, or to authorize or require a prosecutor to ask for the death penalty in cases involving murders of drug dealers.
JOHNSON: Experts say most juries don't like to sentence people to death for killing drug dealers. and removing those cases means the Justice Department seeks capital punishment less often. It also saves money.
When public defenders mount a death penalty defense in the federal courts, it costs more than $400,000 just for the trial, and that doesn't include the costs of prosecuting the case or handling appeals thereafter.
Carrie Johnson, NPR News, Washington.
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