President Donald Trump is using his final days in the White House to ratchet up the pace of federal executions, with five scheduled before President-elect Joe Biden’s inauguration on 20 January 2021. The first of the five having already taken place yesterday, on Human Rights Day (10 December 2020).
The plan breaks with a long-standing convention in which lame-duck presidents defer to incoming presidents on policies in which they differ so starkly.
Biden, a Democrat, is opposed to the death penalty, and his spokesman told AP (Associated Press) that he would work to end the death penalty when he takes office.
Robert Dunham, director of the non-partisan Death Penalty Information Center said:
“It’s hard to understand why anybody at this stage of a presidency feels compelled to kill this many people … especially when the American public voted for someone else to replace you and that person has said he opposes the death penalty…This is a complete historical aberration.”
The last time a U.S. government executed federal inmates during a presidential transition was in the late 1800s, in the waning days of the Cleveland administration. Grover Cleveland was also the last presidency in which the number of federally executed civilians reached double digits in a year – with Cleveland executing 14 in 1986. Should Trump’s five go ahead as planned he will have executed 13 since July, when federal death executions resumed after a 17-year hiatus.
This makes Trump the most prolific execution president in over 130 years. By the time he leaves office he will have executed nearly a quarter of all federal death-row prisoners
A coalition of nearly 100 criminal justice officials called for the President to grant clemency to the four men and one woman who have executions scheduled before the end of the transition period. The joint-statement read:
“Granting clemency will not only help restore public trust in the legal system, but will also show the public that compassion is never the wrong choice.”
The resumption
In July 2019, Attorney General William Barr suddenly announced that federal executions would resume, despite little to no public pressure to do so.
Initially, several lawsuits prevented much progress on the issue being made, and by the time the Bureau of Prisons (BOP) received clearance, the pandemic had already killed more than 282,000 Americans according to figures compiled by John Hopkins University.
Many believe that the restart of executions in an election year was politically motivated, helping Trump brand himself as a law-and-order president.
The choice to first execute a series of white males convicted of killing children also appeared calculated, amidst nationwide protests over racial bias in the justice system.
Barr insists that the resumption was driven by adherence to the law, stating: “I don’t feel it is a political issue,”.
The civilians facing execution
The myth that the death penalty is reserved for the “the worst of the worst” is also continually debunked throughout the criminal justice officials impassioned statement.
In the case of the current five: Brandon Bernard, who was was just 18-years-old when he was an accomplice to a crime for which he was sentenced to death; Alfred Bourgeois and Corey Johnson both have IQ scores in the clinically accepted range of intellectual disability (a medical classification under which individuals lack the mental ability and skills necessary for day-to-day living); Lisa Montgomery is a victim of “extraordinary physical and sexual abuse and is seriously mentally ill”; while Dustin Higgs received the death penalty despite not killing anyone, and his “more culpable co-defendent” received a life sentence.
The case of Brandon Bernard, who was executed yesterday, has gained particular attention in the States. The first of the five scheduled executions, Brandon was the youngest offender executed by the federal government in nearly 70 years. Five of the nine surviving jurors in his case, as well as the US attorney who defended the death sentence on appeal, publicly called for his execution to be stopped.
Bernard, who was convicted as an accomplice in a double murder case, directed his last words to the family of the victims, saying:
“I’m sorry… That’s the only words that I can say that completely capture how I feel now and how I felt that day.”
The pandemic
Many have also criticised the administration for pursuing these executions as confirmed coronavirus cases are exploding in prisons across the country. The statement put out by 95 criminal justice officials read:
“At a time when the country is struggling through a deadly pandemic, spending scarce resources to carry out federal executions and forcing defense lawyers to risk their lives to defend clients on death row is simply unthinkable,”
These concerns will be amplified by news that eight members of the federal Bureau of Prisons (BOP) execution team – as well as the inmates spiritual advisor – tested positive for the coronavirus after participating in the 19 November 2020 execution of Orlando Hall.
The eight positive tests represent 20 percent of the execution team.
The Terre Haute federal correctional complex, where federal executions are conducted, currently has 264 prisoners and 21 staff with confirmed cases of COVID-19. Two prisoners within the facility, both serving non-capital sentences, have appealed to a federal court to issue an injunction against the scheduled executions on the grounds it presented a significant risk to the health of the prisoners. The court denied their request on 9 December 2020.
Each execution brings around 100 individuals into the prison, including execution staff, extra security staff, media, and other witnesses. The BOP have confirmed that COVID testing for those travelling for executions is not mandatory.
The incoming administration
Many are calling for president-elect Joe Biden to lobby harder for these pre-inaugural executions. However, the reality is that there is little he can do, especially considering Trump doesn’t consider his electoral defeat legitimate.
More generally, the issue of the death penalty is a sticky one for Joe Biden. He was previously an advocate for capital punishment and was a central figure in crafting a 1994 crime bill, that added 60 federal crimes for which citizens could be executed.
Several of the inmates executed by Trump were convicted under provisions of that bill. The race of those with planned executions over the coming weeks also reinforces criticisms of the bill – four of the five set to die are black.
While Vice-president-elect Kamala Harris took a stand against capital punishment in her successful 2003 campaign for San Fransisco District Attorney and is quoted as saying:
“My entire career I have been opposed — personally opposed — to the death penalty,”
Robert Dunham of the Death Penalty Information Centre claims that she has a “mixed record”, saying:
“There are instances where as district attorney she decided not to seek the death penalty and there are other instances where she as attorney general took steps that made it more difficult for a potentially innocent person to get access to evidence that could get to the truth.”