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On January 25, 1889, the federal government hanged Richard Smith, a Choctaw Indian, for a murder on tribal land in Arkansas. In the history of the death penalty in the United States, executions have been common in election years. But Smith’s was different. Richard Smith’s execution was remarkable because President Grover Cleveland held the execution after having lost the electoral college vote to Benjamin Harrison. We had not had another lame-duck execution for a federal offense for almost 132 years.
Until now. President Trump presided over the lame-duck execution of Orlando Hall on November 19, 2020. He wasn’t done. Brandon Bernard was executed on December 10, Alfred Bourgeois on December 11, Lisa Montgomery on January 13, Corey Johnson on January 14, and Dustin Higgs on January 16.
Additionally, in the months leading up to the November 3 vote, President Trump presided over the executions of seven more men: Daniel Lee (July 14); Wesley Purkey (July 16); Dustin Honken (July 17); Lezmond Mitchell (August 26); Keith Nelson (August 28); William LeCroy (September 22); and Christopher Vialva (September 24).
In the final seven months of his term, President Trump presided over 13 federal executions. Prior to this unprecedented election-year barrage, there had been a total of only three federal executions in the modern history of the federal death penalty (Timothy McVeigh (June 11, 2001); Juan Garza (June 19, 2001); and Louis Jones (March 18, 2003).
For those of us who have handled death penalty cases, it comes as no surprise that among the 13 executed was a man with a low IQ and a legitimate intellectual disability claim; another who suffered from Alzheimer’s and dementia; and several who suffered from schizophrenia, major mental illnesses, and significant trauma histories. It should also come as no surprise that Brandon Bernard, who was 18 at the time of his offense — and had not been the triggerman — was executed, while the more culpable triggerman in his case had not received the death penalty.
The Trump administration had hoped to execute each of the 13 men and women in the months leading up to the election. Attorney General Bill Barr rolled out the execution plans in a press release in July 2019. Mr. Barr claimed that “we owe it to the victims and their families” to carry out these executions. However, the DOJ did not contact the victims’ families when coming up with its list of people to execute, and at least one victim’s family opposed the death penalty.
President Trump and his administration pushed for these executions to score political points as the “law and order” candidate against Joe Biden, who had publicly called for the abolition of the death penalty.
Donald Trump used executions and the death penalty with an ease similar to several judges up for election or retention in the South in the 1980s and 1990s. For instance, in 1994, “Maximum” Mark Montiel, a sitting Alabama Court of Criminal Appeals judge, while running for the state’s supreme court, accused the Alabama Supreme Court of being “too left and too liberal” in capital cases. He called for the court to set 27 execution dates for defendants whose cases were in federal habeas proceedings.
It is no surprise that President Trump would use the death penalty for partisan political advantage. In 1989, long before Twitter, Donald Trump famously bought full-page ads in the New York papers calling for the death penalty for the Central Park Five who were accused of killing a white jogger. The ads read:
BRING BACK THE DEATH PENALTY.
BRING BACK OUR POLICE!
I want to hate these murderers and I always will. I am not looking to psychoanalyze or understand them, I am looking to punish them. … I no longer want to understand their anger. I want them to understand our anger. I want them to be afraid.
The Central Park Five were exonerated by DNA evidence and a confession by the actual perpetrator. Despite stoking the passions that denied the innocent men fair trials in the first place, Donald Trump has refused to apologize and continues to suggest that they are guilty despite the DNA evidence.
President Trump and Attorney General Barr’s spree of federal executions was similarly out of step with public sentiment. The death penalty has been on a steady decline the past 20 years. In 2000, 85 men and women were executed. In 2020, excluding the federal executions, the states executed seven people. In 2000, 223 defendants were sentenced to the death penalty. In 2020, 18 new death verdicts were returned by jurors, and five of those were in California where the jurors likely realized their vote for death was largely symbolic because a highly publicized execution moratorium is in place.
There is, however, one similarity between capital punishment in 2000 and in 2020: each year, six exonerees were freed from death rows.
Public sentiment continues to turn in favor of abolishing the death penalty. Colorado and Virginia recently repealed their death penalty statutes by legislative action. Fewer and fewer states are carrying out executions, and fewer and fewer jurisdictions in death penalty states are seeking the death penalty at trial.
The Biden-Harris campaign website said this about the death penalty:
Eliminate the death penalty. Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level and incentivize states to follow the federal government’s example. These individuals should instead serve life sentences without probation or parole.
Candidate Biden did not pay a price at the polls for opposing the death penalty, and President Biden is the first sitting president to openly oppose it.
So, what now?
I have friends who have said, “Well, President Biden has a full plate with COVID relief, the economy reboot, and fighting global warming. Can’t you be satisfied with an Obama-like policy of few death penalty prosecutions and no executions? And, by the way Adams, what are you complaining about, you make money off defending those guys?”
To the first point, I say: our democracy is fragile, and our country evenly divided. If we don’t end the federal death penalty now, we run an unacceptable risk of living through another execution spree the next time a politician believes he or she needs to shore up the “law and order” base. Avoiding the death penalty for the next four years and taking our chances afterward is not enough. Lest we forget, Grover Cleveland defeated President Harrison in a rematch in 1892 and remains the only president to serve nonconsecutive terms.
To the second point, I say: I have been honored to be a capital defense lawyer for much of my career. The capital defense bar is a phenomenal group of empathic, smart, and tenacious advocates. Justice Antonin Scalia once wrote, “The heavily outnumbered opponents of capital punishment have successfully opened yet another front in their guerrilla war to make this unquestionably constitutional sentence a practical impossibility.” While Justice Scalia intended this as in insult to capital defense lawyers, for lawyers litigating for justice for clients against the inhumane state-sponsored machinery of death, it was the highest compliment. Once the death penalty is finally eradicated in our country, the capital defense bar will have plenty of injustice left to combat in the legal system.
The death penalty remains a national embarrassment. It is racist, classist, and anachronistic. There is no deterrent value in a death sentence when compared to a life sentence. And those of us who have had these cases — who have had the honor of sitting with a client in the courtroom as we await a verdict in a capital case or down the hall from an execution chamber as we await a final ruling — know firsthand how inhumane this punishment is.
Due to President Trump’s successful appointment of three justices, the Supreme Court is unlikely to strike the death penalty in the foreseeable future.
Therefore, abolishing the federal death penalty must be a legislative priority. Thirty-seven members of Congress have signed a letter to President Biden to support the Federal Death Penalty Prohibition Act, sponsored by Rep. Ayanna Pressley (D-MA) and Sen. Dick Durbin (D-IL). This proposal is consistent with longstanding NACDL policy of abolishing the death penalty. We, together with coalition partners across the political spectrum, must do our part to support this bill.
Now is the time to improve the criminal legal system by ending the federal death penalty.
About the Author
After spending 15 years as a public defender and nonprofit lawyer, Chris Adams opened his private practice in 2007. He devotes half of his practice to defending men and women facing the death penalty in federal and state courts throughout the country. He also defends people and businesses facing allegations or investigations in federal and state courts.
Christopher W. Adams (NACDL Life Member)
Adams & Bischoff, LLC
Charleston, South Carolina