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Atrocities of the Federal Death Penalty

Protestors holding a banner with the text "Don't kill for me...Stop executions."
President Biden must commute all federal death sentences.
Protestors holding a banner with the text "Don't kill for me...Stop executions."
Cassandra Stubbs,
Director Capital Punishment Project,
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February 2, 2021

In just six months, the federal government conducted an unprecedented, unjust, and unlawful execution spree, taking the lives of 13 people. The record of injustice in those cases — the compelling claims for mercy and legal relief by those executed and the denial without fair consideration by the executive branch or by the Supreme Court — underscores the urgency for President Biden to grant row-wide clemency to the 49 people on the federal death row.

Although it was William Barr and Donald Trump who scheduled and pushed these executions amidst a deadly pandemic, it was the U.S. Supreme Court that facilitated and encouraged them by abdicating its responsibility to conduct constitutionally-required review. In case after case, in the middle of the night, the court wiped out orders of lower courts from around the country that had paused the executions to allow for review of important legal claims. It did so with little, or more often, no explanation — often despite challenging legal standards that would have required extraordinary findings by the court to justify its action.

By shirking its duty to apply the Constitution and denying the opportunity for consideration of important legal claims, the Supreme Court damaged its own integrity. Justice Sonia Sotomayor best summed up the court’s decisions: “This is not justice.” Confronted with the dramatic crisis of legitimacy created by the Supreme Court’s failure to fulfill its role of ensuring fair and adequate review of these cases, there is only one adequate response by the executive branch: full commutation of all prisoners on federal death row.

The death penalty all too often is reserved not for the worst of the worst, but the most broken of the broken. Lisa Montgomery, one of the 13 people executed this year, was no doubt selected by the federal government because of the sensationalized and tragic facts of her crime: Ms. Montgomery killed a pregnant woman in order to deliver the fetus and attempt to raise the baby as her own. This is not something a person in their right mind would do, and indeed, Ms. Montgomery was profoundly mentally ill. She developed PTSD and brain damage following over a decade of unimaginable sexual violence and torture inflicted on her as a child, teen, and young woman. Her mother trafficked her in order to pay the bills, and her stepfather built a special rape chamber where he and his friends tortured Lisa. The horrors she faced as a girl were known — she reported the violence to a police officer, and social services intervened to remove her sister from the family. Yet no one protected her. Lisa’s sister wrote a devasting account of the weight she carries because she was removed from the family as a young girl, while Lisa was left behind.

For Wes Purkey, the second person executed by the federal government this summer, childhood was a harrowing gauntlet of sexual and physical violence, humiliation, and emotional abuse. He was beaten and sexually abused as a child by his family member and a priest, and ultimately abandoned by both of his parents as a child. He was taunted and belittled at school for his poverty, his neglect, and his stutter. By the time he was 14, Wes was receiving serious, in-patient psychiatric treatment and experiencing severe headaches, fatigue, and blackouts. His adulthood was spent in and out of institutions, where he was prescribed antipsychotic medications for his serious mental illness.

Traumatic childhoods were not the only things Ms. Montgomery and Mr. Purkey shared. They were both defended at trial by Frederick Duchardt, the attorney with the most clients sentenced to death in federal court. In both of their cases, the juries never heard the full stories of their lives because of Duchardt’s egregious mistakes and omissions. Both were sentenced to death in one of the handful of federal district courts overwhelmingly responsible for the vast majority of federal death sentences.

The executions of both Ms. Montgomery and Mr. Purkey were unconstitutional. They were both executed despite the evidence that they lacked rational understandings of their executions as a result of their serious mental illnesses. Their executions broke the promise of the well-established 1986 constitutional rule that our nation will not execute individuals who can’t understand the basis for their execution.

Wes Purkey was 67-years-old and diagnosed with Alzheimer’s disease and schizophrenia when he was executed. His counsel first filed a petition in Nov. 2019 asking for a hearing on his claim that he lacked a rational understanding of the basis for his execution, citing his mental diagnoses and his delusional beliefs that prison guards were poisoning him and had targeted him for execution because of his legal skills. For the next eight months, the government argued Mr. Purkey was not even entitled to a hearing — contending his claim was either too early or too late. The federal district court concluded that the mental health records and reports filed by Mr. Purkey’s lawyers constituted a “substantial showing of incompetence” to be executed, and that he was entitled to both an order staying his execution and a hearing. The D.C. Court of Appeals refused to immediately vacate the stay, and ordered expedited briefing about complex procedural issues raised in the case. But without explanation, the Supreme Court wiped out the district court’s stay and the briefing ordered by the appeals court. Both Justices Breyer and Sotomayor wrote dissents, joined by Justices Ginsburg and Kagan.

The five conservative-majority justices of the Supreme Court ultimately vacated three stays in Mr. Purkey’s case, paving the way for his execution. In each of these cases, the lower courts had set compressed briefing schedules to allow for consideration of complex legal or factual issues raised. Without comment, the Supreme Court prevented that review and simply pushed forward the executions.

Wes Purkey was executed on July 16, 2020. The day before, Daniel Lee became the first person to be executed by the federal government in 17 years. Mr. Lee was executed despite a stay granted in challenge to the method of execution in his case, upheld up by the D.C. Circuit, and despite a stay from the Eighth Circuit. Both were vacated by the Supreme Court. Mr. Lee had earlier won a stay of execution from the government’s gross violations of their duty to disclose exculpatory evidence. Surviving family members of the victims in his case were also opposed to his execution, and publicly urged President Trump to commute his sentence. But perhaps the most shocking aspect of his execution was the day that it occurred.

Mr. Lee was scheduled for execution on July 14, 2020. At midnight on that day, the stay from the appeals court stopping his execution was intact, and it appeared he would not be executed before the court heard the legal questions raised in his case. But two hours after midnight, at 2 o’clock in the morning, the Supreme Court vacated the stays. Under long established practices and interpretation of federal regulations, that action should have come too late to allow Mr. Lee’s immediate execution. The July 14 warrant had expired. Federal regulations, and state laws and customs, demand a period of time before a new death warrant date is set. But in Mr. Lee’s case, the government did something it had never done before: It announced the new date right then and declared the instant notice effective immediately.

Mr. Lee lay strapped to the gurney for hours as they emailed the new death notice to counsel and moved to vacate the remaining stay pending in Arkansas. The federal government ultimately executed him the morning of July 15. This was a stunning flex of authoritarian power: The execution under this instant warrant theory was likely unlawful, but the government did not pause long enough for any court to decide. Emboldened by this, it repeated the behavior for Wes Purkey the next day, who was executed hours after midnight.

The execution spree, undermining legal precedent and the bounds of decency, continued. Dustin Honken was the third person executed that week in July. Iowa Catholic Bishops had asked Trump to commute the sentence of Mr. Honken, a devout Catholic who was deeply remorseful for his crimes and the loving father of two children. The pleas, like all the other commutation requests, went unheeded. Mr. Honken’s lawyer, Shawn Nolan, gave this statement after Mr. Honken’s execution:

During his time in prison, he cared for everyone he came into contact with: guards, counselors, medical staff, his fellow inmates and his legal team. Over the years he grew incredibly close to his family, becoming a true father, son, brother and friend. There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.

Mr. Nolan’s comment highlights two of the unquestionable failings of the death penalty: It discounts the power of redemption and it imposes new pain and suffering on the loved ones of those executed, who themselves have committed no crimes. Several of the individuals executed had children, who loved their parents and are left to struggle for the rest of their lives with the impossible challenge of losing a parent because of the purposeful decision of their own government.

The planned execution of Brandon Bernard drew a national outcry. Hundreds of thousands of Americans posted on social media and signed petitions urging his clemency, many moved by his example of redemption. Brandon Bernard and Christopher Vialva were both teenagers when they committed the offenses that lead to their executions. Brandon was not the actual shooter, and as in Mr. Lee’s case, the prosecution hid critical evidence from the defense team. Brandon was always remorseful for his role in the crime. The trial prosecutor, the judge, and multiple jury members opposed his execution. The pardon office recommended commutation to the White House for Brandon — but one never came from President Trump.

Racism is the legacy and permanent hallmark of the American death penalty. People of color are disproportionately sentenced to death in the federal system. Two men were executed this year who were not the triggerman, Mr. Bernard and Dustin Higgs. Both men were Black. Two men were executed this year despite their intellectual disability, which should have exempted them from execution under the constitution, Corey Johnson and Alfred Bourgeoise. Both men were Black. One of the federal prosecutors who tried Orlando Hall’s case was trained in how to discriminate against and exclude Black jurors, and selected an all-white jury to convict and sentence Hall, a Black man, to death.

The 13 people executed also included Lezmond Mitchell, a member of the Navajo Nation. The death penalty statute prohibits the federal government from using it to seek death against a tribal member without the tribe’s consent. The government did an end run around this prohibition through creative charging, and then tried Mr. Mitchell by a jury that had only one Native American member after hundreds of Navajo jurors were dismissed from the jury pool. It then sought aggressively to oppose Mr. Mitchell’s right to interview the jurors to explore where racism contributed to the verdict, an issue that was in active litigation when the government set his execution date. At a time when the federal government was so incompetent and strapped for resources while dealing with the COVID-19 pandemic that it sent body bags instead of PPE to Navajo Nation, it pursued the execution of Mr. Mitchell over the tribe’s objection with lethal precision.

The federal government spent millions on its unprecedented execution spree, and it did so despite the serious risk that carrying out executions would contribute to the spread of COVID-19. When it set execution dates for July, the federal government had suspended all visitation at FCC Terre Haute, the prison where executions occurred. There had been only a few cases, and the government’s requirement that prisoners and staff be limited to separate areas worked to prevent wider spread. But in deciding to carry out executions, the federal government undid these protections — opening the prison not just to visitors, but to the arrival of hundreds of people from around the country.

The executions required staff from across the facility and across the nation to come into close contact and mix. In order to keep the executions going, the BOP lied about the steps they were taking to reduce the risk, and exposed countless individuals to serious illness and disease. Ultimately and predictably, the federal executions became super spreader events. Hundreds of prisoners and staff became ill at the prison, as well as the lawyers, spiritual advisors, and media representatives who attended the executions. The government admitted that even when the execution team members themselves became sick, it did no contact tracing. This recklessness exposed countless others to illness, spreading disease and likely death.

Our government betrayed our national commitment to justice by carrying out these depraved and amoral executions. We know now that we cannot depend on either the federal government or the Supreme Court to act within the bounds of the Constitution or decency. This aggressive, unlawful, and unjustified action requires a strong moral response. President Biden, who ran on his opposition to the death penalty, can and should work for repeal. But most importantly, he must commute the sentences of everyone on federal death row.

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