SOL 79 | With Pres. Biden a lame duck, we must ensure that he lives up to his promise to end the U.S. federal death penalty
Death Penalty Action was created in 2017 specifically to address the then-expected resumption of federal executions. We led the public and grassroots opposition to the 13 federal executions in 2020 and 2021, and we have been organizing support for the Federal Death Penalty Prohibition Act currently in Congress.
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Website: Death Penalty Action
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USP Terre Haute, Indiana, where federal executions are carried out
There's A GOP Plan For An Execution Spree If Trump Wins The White House
Buried on page 554 of the plan is a directive to execute every remaining person on federal death row — and dramatically expand the use of the death penalty.
Shortly after Joe Biden entered the White House, the Justice Department formally reinstated the federal execution moratorium and announced a sweeping policy review. But despite Biden’s campaign promise to work to end the federal death penalty, there has been little progress toward that goal.
Meanwhile, Trump, the GOP’s presumptive 2024 presidential nominee, has openly fantasized about executing drug dealers and human traffickers. He reportedly suggested that officials who leak information to the press should be executed, too. And behind the scenes, there’s a team of pro-Trump conservatives who are pushing for a second Trump term that involves even more state-sponsored killing than the first.
Last year, a coalition effort by conservative groups known as Project 2025 released an 887-page document that lays out policy goals and recommendations for each part of the federal government. Buried on page 554 is a directive to execute every remaining federal death row prisoner — and to persuade the Supreme Court to expand the types of crimes that can be punished with death sentences.
Gene Hamilton, the author of the transition playbook’s Department of Justice chapter, wrote that the next conservative administration should “do everything possible to obtain finality” for every prisoner on federal death row, which currently includes 40 people.
“It should also pursue the death penalty for applicable crimes—particularly heinous crimes involving violence and sexual abuse of children—until Congress says otherwise through legislation,” he wrote. In a footnote, Hamilton said that this could require the Supreme Court to overrule a previous case, “but the [Justice] department should place a priority on doing so.”
Hamilton, a former Trump DOJ and Department of Homeland Security official, played a leading role in ending Deferred Action for Childhood Arrivals — the program that provided protections against deportation for immigrants who were brought to the U.S. illegally as children — and the “zero-tolerance” border policy that resulted in separating children from their families.
Trump’s presidential campaign did not immediately respond to HuffPost’s request for comment.
The Project 2025 proposal envisions an extreme shift in how the death penalty is used in America. The 13 executions carried out at the end of Trump’s presidency marked the greatest number of federal executions in a single year since 1896. Although there are non-homicide federal crimes, like treason, that technically carry the death penalty, every person on federal death row was convicted of crimes involving the death of a victim, according to Robin Maher, the executive director of the Death Penalty Information Center.
“A major principle of the use of the death penalty in the modern era is that we are confining the use of the death penalty to not only the worst of the worst crimes, but the very worst offenders,” Maher said. “To expand the death penalty would just be a sea change that would affect decades of jurisprudence, and I don’t think there are enough votes on the [Supreme] Court for that to happen.”
Despite these Supreme Court rulings, there have been multiple state-level efforts to expand death sentences to non-homicide cases. Last year, Florida Gov. Ron DeSantis (R) signed a bill allowing the death penalty in child rape convictions. At a bill-signing event, DeSantis said that the decision in Kennedy v. Louisiana, the 2008 Supreme Court case, “was wrong” and that his state’s new law provided a way to “challenge that precedent.” Months later, a central Florida prosecutor sought the death penalty against a man accused of raping a child, although that case ended in a plea deal resulting in a life prison sentence.
Lawmakers in Tennessee recently passed a similar bill, which awaits a signature or a veto by the governor.
In 2021, Biden became the first president to openly oppose the death penalty. It was a dramatic evolution for the politician who previously sponsored a landmark 1994 crime bill that included an expansion of the use of the federal death penalty. Death penalty abolition advocates hoped that the Democratic president would whip votes in Congress for a bill to end the federal death penalty or, at the very least, commute the sentences of those on death row to life in prison so that a future president could not immediately resume executions.
Instead, Biden has been noticeably silent on the issue. Although the Justice Department has paused executions and is conducting a comprehensive review of execution policies and procedures, it has also continued to fight in court against people on death row who challenge their sentences.
“There are many cases where the prisoners have been diagnosed with intellectual disability, or have shown their prosecutions were infected with racial bias, just for example,” Ruth Friedman, the Federal Capital Habeas Project director, said in an interview.
“The DOJ could be taking a fresh look at these cases and considering whether to face these failures. But instead they are vigorously fighting every one, and that’s disheartening,” she said.
“It’s terrific they are not executing anyone right now, but if they usher them all into an administration they know will, what have they done? They can and should be taking a real look at the problems in these cases.”
There are multiple bills in the House and Senate that would abolish the federal death penalty, some of which have been introduced multiple times without coming to a vote. Last year, the White House declined to answer a question about whether it worked to shore up Democratic support for such legislation. The White House did not respond to questions for this story.
“I wouldn’t say that the White House has been actively engaging people to support the bill,” said Rep. Adriano Espaillat (D-N.Y.), the sponsor of one of the death penalty bills in the House. “I think their response to the death penalty issue was to implement this moratorium.”
Rep. Ayanna Pressley (D-Mass.), who has repeatedly introduced bicameral death penalty abolition legislation with Sen. Dick Durbin (D-Ill.), said in an interview that they are making progress. When she and Durbin first introduced bills in 2019, there were only 20 co-sponsors across both chambers of Congress, she said. Now, there are more than 80 sponsors total, as well as support from more than 265 organizations.
Rep. Ayanna Pressley (D-Mass.), who has repeatedly introduced bicameral death penalty abolition legislation with Sen. Dick Durbin (D-Ill.), said in an interview that they are making progress. When she and Durbin first introduced bills in 2019, there were only 20 co-sponsors across both chambers of Congress, she said. Now, there are more than 80 sponsors total, as well as support from more than 265 organizations.
Still, that represents less than one-third of Democrats in the House and less than half of those in the Senate. Asked if she thought Biden had done all that he could to get congressional Democrats on board with the bill, Pressley said: “I don’t think it is any one person’s responsibility to advance an issue. That is the work of movement-building, and that’s what we’ve been doing. The whole reason that you continue to reintroduce legislation is to continue to bring other people along.”
“At any one time, there could be 12,000 active pieces of legislation,” Pressley continued. “Oftentimes, and I’ll include myself in this, there are bills whose sentiments I’m very much aligned with, but I just didn’t know existed.”
Source: huffpost.com, Jessica Schulberg, May 9, 2024
Fuller picture emerges of the 13 federal executions at the end of Trump’s presidency
.jpg "US Attorney General William Barr and Donald Trump")
During a Dec. 9, 2020, call to the White House, Dershowitz told Trump that Brandon Bernard, at 40, wasn’t the man he was when Todd and Stacie Bagley were killed in 1999 and that he deserved to have his sentence commuted to life in prison.
Trump sounded sincere when he said he wished he could spare Bernard’s life, but he added apologetically that he’d already promised the victims’ relatives that Bernard would be put to death, Dershowitz said about the 20-minute call.
“‘They’re on their way. They’re on their way,’” Trump kept saying, Dershowitz recalled. The relatives, Trump explained, were on the road to the prison in Terre Haute, Indiana, where federal executions are carried out and it was “’too late to pull them back.’”
Bernard was executed the next day.
Secrecy was a hallmark of the 13 federal executions during the last six months of Trump’s presidency. Although reporters were allowed to witness them, it was impossible to know at the time what was happening behind the scenes.
Fresh details have emerged since the executions, including from Dershowitz, who spoke recently to The Associated Press. The fuller picture reveals that officials cut corners and relied on a pliant Supreme Court to get the executions done, even when some — including Trump himself, in Bernard’s case — agreed that there might be valid reasons not to proceed with them all.
Other newly available information includes an autopsy report obtained by the AP for Corey Johnson, convicted of seven drug-related killings. It concluded that during his execution, he suffered pulmonary edema, a painful condition akin to drowning. So much fluid rushed up his trachea that some exited his mouth.
More federal executions carried out under much the same conditions may not be far off.
President Joe Biden hasn’t kept a promise he’d abolish the federal death penalty. Although his Justice Department announced a moratorium on federal executions in 2021, that can be lifted easily.
So, unless Biden clears death row, “history will repeat itself” if a pro-death penalty candidate, like Trump, wins in 2024, said Robert Dunham, a Temple Law School adjunct professor on capital punishment.
Trump’s 2016 win didn’t particularly worry federal death row inmates, prisoner Billie Allen, who was and remains in the unit, said by email. After all, there hadn’t been a public clamor for federal executions to resume following a 17-year hiatus.
But guards began practicing executions in 2019, including by wheeling other guards role-playing as inmates out of cells in restraint chairs.
“It was a sign … executions were about to take place,” Allen said. “Many of us knew Trump was going to keep killing … until he ran out of time.”
Observers assumed it was Trump’s initiative. But in his 2022 book, “One Damn Thing After Another,” Trump’s attorney general at the time of the executions, Bill Barr, suggested it was actually his.
Barr said he spoke to Trump just once about the plans. Regarding capital punishment, Trump asked, “Why do you support it?” Barr wrote that Trump seemed satisfied when he answered that for brutal killings, it was “the only punishment that fit the crime.”
Starting in 2019, inmates froze when guards entered death row to tell one among them “the warden wants to speak with you,” dreaded words signifying an inmate had been selected for execution, Allen and other inmates explained.
Guards wearing surgical masks stopped at cell No. 315 on Oct. 16, 2020. It was Bernard’s cell.
“Their eyes were all I needed to see,” Bernard explained in a statement posted for him on social media. ”(Their) eyes held … only pity and sadness.”
To be selected, an inmate’s guilt had to be certain and their victims had to have been uniquely vulnerable, Barr wrote.
It wasn’t obvious Bernard met that criteria.
The kidnapping and robbery of the young couple who were on a Texas religious retreat was brutal. They were locked in their car’s trunk for hours, begging for their lives, before accomplice Christopher Vialva shot them in the head.
Bernard’s role was murkier. He allegedly set the car ablaze with the bodies inside. During the trial, prosecutors said smoke in Stacie’s lungs indicated the fire had killed her. That evidence was disputed.
Lawyers for Bernard and Vialva, who were tried together, say prosecutors also mischaracterized the Black defendants to a nearly all-white jury as gang thugs.
By all accounts, Bernard transformed himself in prison and encouraged fellow inmates to follow his example. Introspective and polite, he didn’t commit a single rules infraction during two decades in prison.
Each execution required up to 300 staff and contractors. Government lawyers cited those logistics in arguing against any delays.
Unfailingly, the conservative-tilted Supreme Court cleared all legal obstacles
“If they do two a month, then I’m screwed,” Montgomery said during an Aug. 27, 2020, phone conversation, call transcripts revealed.
Her lawyers momentarily considered taking her off her medications so she’d “go absolutely psychotic,” proving mental fragility exacerbated by sexual abuse in childhood, said her lawyer, Kelley Henry.
“Ultimately, we weren’t going to do that to her,” Henry said.
When courts greenlit executions of her clients convicted on state charges, Henry at least followed the logic.
“With the Trump executions, I can’t give you a view of the law that would explain why any of them happened,” she said.
Mental health and other issues should have precluded many of the executions, said Robin Maher, director of the Death Penalty Information Center, which tracks state and federal executions.
“For anyone who believed that the death penalty only punishes the worst of the worst, these executions were a rude awakening,” she said.
Without explaining why, the Supreme Court rejected Bernard’s final request for a stay on his execution day.
In dissent, Justice Sonia Sotomayor wrote that whether prosecutors exaggerated his gang status knowing he held the lowest rank deserved more scrutiny.
He never had the chance to prove those claims, she wrote. “Now he never will.”
Within hours, executioners poked an IV line into each of Bernard’s arms, including a backup in case the first one failed, in accordance with protocols.
Speaking with striking calm, Bernard turned toward the Bagley relatives in an adjacent witness room and said, “I’m sorry.”
He watched a marshal pick up a death chamber phone, perhaps hoping Trump had commuted his sentence after all.
Bernard was pronounced dead at 9:27 p.m.
When word reached Dershowitz, he was devastated.
“I can tell you, I shed tears,” he said. “This was a wasted life.”
What haunts him is that he believes Trump might have intervened if he hadn’t already made his promise to the Bagley relatives.
“This is a terrible thing to say,” Dershowitz said, “but I believe if I had spoken to the president a month earlier, I might have been able to persuade him.”
Source: The Associated Press, Staff, October 3, 2023
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