Trump Presided Over an Unprecedented Killing Spree on His Way Out. Biden Must Stop Federal Executions

The Trump administration executed thirteen men and women within six months—the most consecutive civilian executions by the federal government or any state in the 244-year history of the United States.

Trump Presided Over an Unprecedented Killing Spree on His Way Out of Office. Biden Needs To Stop Federal Executions
Lisa Montgomery during her time in prison. (Courtesy of attorneys for Lisa Montgomery)

Joe Biden and Donald Trump diametrically disagreed about most issues during the 2020 presidential campaign—but beyond the deadly COVID pandemic, no issue carried as extreme and irrevocable a consequence as the death penalty. During the campaign, with the bloodthirsty support of Attorney General William Barr, the Trump administration executed 13 men and women within six months—the most consecutive civilian executions by the federal government or any state in the 244-year history of the United States. 

This unprecedented killing spree ended a 17-year bipartisan federal moratorium. Betraying the racist nature of the death penalty, six of the executed men were Black and one was Native American. Six of the executions occurred after Trump lost the election. And in a further shocking display of racist cruelty, the last execution—of Dustin John Higgs, a Black man—took place on the birthday of Dr. Martin Luther King Jr.

Ninety minutes before Higgs was scheduled to die, the six-member conservative majority of the U.S. Supreme Court rejected his appeals without even holding a hearing. In her vehement dissent, Justice Sonia Sotomayor put the deadly series of executions in historical context:

“The Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.” 

She also noted that the “unprecedented rush” of federal executions had left numerous legal disputes undecided. In one case, the government scheduled executions at such a quick pace that those facing execution had to “fast-track challenges to their sentences,” while in other cases, the courts did not have a chance to even determine if the executions were legal.  The Department of Justice “did not tread carefully,” she wrote.

“Rather than permit an orderly resolution of these suits, the Government consistently refused to postpone executions and sought emergency relief to proceed before courts had meaningful opportunities to determine if the executions were even legal. This is not justice.

“Yet the Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised. Those whom the Government executed during this endeavor deserved more from this Court.”

Kelley Henry, part of the team of lawyers who valiantly tried to save the life of Lisa Montgomery, the first woman executed by the federal government since 1953, described her client’s execution as the “craven bloodlust of a failed administration.” Henry called Montgomery “the victim of unspeakable torture and sex trafficking,” who suffered from longstanding debilitating mental disease, including psychosis and auditory hallucinations.   

“Our Constitution forbids the execution of a person who is unable to rationally understand her execution,” Henry said in a statement.  Such an execution “violat[es] the Constitution, federal law, its own regulations, and longstanding norms along the way.”

As criminal defense lawyer Sarah Sanger has seen from personal experience, “people may commit terrible acts, but that does not give us permission to ignore their life experiences and their humanity.” 

Sanger, who has worked on several capital cases in California and serves as chair of Death Penalty Focus, a prominent abolitionist organization, noted: “Every person on death row has lived a life and within their humanity you will find good but you also will often find abuse, neglect and mental illness.  The flaw in the American legal system is that it is set up to resist recognizing a person’s humanity.”

Support for the Death Penalty Drops as Flaws in the System Are Exposed—Including the Execution of Innocent People

While 108 countries have abolished capital punishment in law or practice and another seven have limited it to war crimes, the U.S. remains part of a gruesome international league of state-killing countries led by China, Iran, Saudi Arabia, Iraq and Egypt. The United States remains a deadly outlier in the world, despite the fact that public support for the death penalty has steadily declined in recent years. 

In fact, support for the death penalty in the U.S. is at an all-time low at 55 percent, down from 60 percent in 2016 and 68 percent in 2001. Since 2009, six states—New Mexico, Illinois, Connecticut, Maryland, New Hampshire, and Colorado—have abolished capital punishment, while the courts in Washington and Delaware have found it unconstitutional. 

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Opposition to the death penalty has been fueled by growing evidence that it is riddled with overwhelming flaws, including racial and economic disparities; mistakes and misconduct by police, prosecutors, jurors, and judges; ineffective assistance of defense counsel; junk science; false confessions; mistaken eyewitness identifications; and the exorbitant cost of implementation. These flaws exist throughout the American legal system, but when it comes to the death penalty, the mistakes cannot be corrected once a defendant has been executed.

And sure enough, these flaws have led to the worst result of all: the execution of innocent people. Since 1973, according to Death Penalty Information Center, 173 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that sent them to death row. The National Academy of Sciences reports that at least 4.1 percent of defendants sentenced to death in the United States are innocent. That means that with approximately 2,553 inmates on facing execution today, at least 105 are innocent. That’s an appalling error rate.  

Based on DNA testing, newly discovered evidence, more modern scientific methods, and the confessions of the real killers, DPIC has concluded that since 1989 at least eighteen innocent men have been wrongly executed in the United States.

Racial Disparities Plague the Death Penalty

According to the DPIC, studies “have consistently found racial disparities at nearly every stage of the capital punishment process, from policing and charging practices, to jury selection, to jury verdicts, to which cases result in executions.” 

As the number of new death sentences decreases, death row is growing even more racially disproportionate, with a significant increase in the percentage of Latinx death-row prisoners. Half of the 34 defendants sentenced to death in 2019 were people of color, with 35 percent African American and 15 percent Latinx. 

Riverside County in California has sentenced more people to die than any other county in the United States since 2013, and 92 percent (23 out of 25) of those have been Black or Latino. In Los Angeles, the last 22 people sentenced to death have been people of color. In Harris County, Texas—home to Houston—18 of the last 20 condemned defendants have been Black or Latino; a 19th was of Middle Eastern descent.

In 1980, a majority of death-row prisoners were white (54.4 percent). By July 2019, 57.8 percent were people of color. The most dramatic increase has been among the Latinx population, whose proportion of death row more than doubled between 1980 and 2000 (from 4.4 percent to 9 percent) and has increased by another 4.4 percent so far this century. Latinx prisoners now comprise 13.4 percent of the nation’s death row.

“Tinkering With the Machinery of Death” Must End

In an eloquent dissent in a death penalty case in 1994, Justice Harry Blackmun, appointed to the Supreme Court by President Richard Nixon, reflected on the fact that the Court had previously declared, “The death penalty must be imposed fairly, and with reasonable consistency, or not at all.”

He noted that despite the effort of states and courts “to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake.” And then, in a momentous statement of personal integrity and moral clarity, he declared, “From this day forward, I no longer shall tinker with the machinery of death.”

Trump Presided Over an Unprecedented Killing Spree on His Way Out. Biden Must Stop Federal Executions
“I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed,” wrote Nixon-appointed Justice Harry Blackmun in 1994. (Picryl / Creative Commons)

Describing his more than 20-year struggle with the death penalty, he announced:

“Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.”

The Court and American society should have heeded Blackmun’s wise counsel over a quarter century ago. The death penalty system is a deeply flawed, irreparable and shameful system. Given human error and prejudice, it cannot be fixed.

Fortunately, President Biden has pledged to stop federal executions and legislation has been introduced in Congress to abolish the federal death penalty. It deserves the support of everyone who cares about justice. 

“In the 40 years I’ve fought to abolish capital punishment, 26 of them as President of Death Penalty Focus,” says Mike Farrell, actor and human rights activist.

“I’ve watched the struggle against state killing with horror and hope: horror at the brutalization of the people of this country that is an inescapable result of this sordid practice, and hope at the steadily growing sense that there is something wrong, something perhaps terribly wrong, with trying to kill our way out of a social problem.” 

We need to stop tinkering with the machinery of death once and for all.

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Stephen Rohde, an author and social justice advocate, practiced civil rights and constitutional law for over 45 years, including representing two men on California’s death row. He is the former chair of the ACLU Foundation of Southern California and former national chair of Bend the Arc, a Jewish Partnership for Justice. He is also a board member of Death Penalty Focus.