Among the actions Donald Trump seems most intent on accomplishing before he must vacate the White House, is to execute as many individuals who are presently on death row as he can manage.
To put this in context, before Mr. Trump became president of the United States, there had been no federal executions since 2003.
Going back still farther, the federal death penalty was declared unconstitutional in 1972 following the decision of Furman v. Georgia, in which the U.S. Supreme Court found that the death penalty violated the Eighth Amendment’s ban on cruel and unusual punishment, and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, and that it was applied in a manner that disproportionately harmed minorities and the poor.
In 1988, however, as the mood in the country shifted toward what would become a two-decade law-and-order frenzy, capitol punishment was reinstated with the Supreme Court ruling of Gregg v. Georgia. Yet, the reinstatement applied to very few crimes. Then in 1994, the U.S. Congress expanded the number of capital federal offenses to about 50.
Still, despite the changes in the law that meant more men and women could be sentenced to death, there have been only three executions by the federal government in more than thirty years. And, as noted above, zero federal prisoners have been executed since 2003.
Starting in July of this year, President Donald Trump, who has long been a vocal fan of the death penalty, and Attorney General Willam Barr, who seems to be stuck in the 1990’s in his views on criminal justice, have jump-started federal executions. Since July, they have put eight people to death. And during the roughly six-and-a-half weeks between now and the day that president elect Joe Biden is to be sworn in as the 46th U.S. president on January 20, the 45th president and his AG appear to be rushing to kill as many individuals who are on federal death row as is possible, with five more executions scheduled before Inauguration Day — despite the fact that the COVID pandemic is making it extremely difficult for imprisoned individuals to have private meetings with their lawyers.
Furthermore, last week, the U.S. Justice Department published a rule change pertaining to how the killings may be accomplished. In addition to lethal injection, according to the new rule, which is scheduled to go into effect this month, federal executions may be accomplished through the use of firing squads, electrocution, or the gas chamber, depending upon circumstances. Why this was deemed necessary is unclear.
Next up on the execution list is Brandon Bernard. Bernard, who is 40, is scheduled to die this coming Thursday, on December 10.
(More about Brandon Bernard in minute.)
A broad array of those who work in the justice system, along with the majority of the American people, do not think that all this government-sanctioned killing, no matter how heinous the crimes involved, is what we ought to be doing.
On Thursday, December 3, nearly 100 current and former elected prosecutors, attorneys general, former and present chiefs of police and county sheriffs, former U.S Attorneys, and former DOJ officials, sent a letter to the Department of Justice expressing their opposition to its rush to execute, and in support of clemency for those individuals scheduled for federal execution in the coming days
“We know that the justice system makes mistakes, and the death penalty takes away any ability to recognize or repair that damage,” said Shameca Collins, District Attorney for Mississippi’s Sixth Judicial District who is one of the signatories to the joint statement. “When we choose death, it is irreversible: we can never go back and overturn a wrongful conviction, address a racially charged process, or recoup the tremendous costs and decades of litigation inherent in the death penalty. Mercy, however, is never the wrong choice.”
The statement sent to the DOJ by prosecutors and law enforcement officials expands on Collins’ points.
“The death penalty raises serious concerns in tension with the constitutional ban against cruel and unusual punishment and the guarantees of due process and equal protection under the law,” states the letter, released by Fair and Just Prosecution, and executive director, Miriam Krinsky. “It is unequally and arbitrarily applied, ineffective at improving public safety, and a waste of taxpayer resources.” The death penalty also “implicates systemic racism and constitutional concerns, and distinguishes our country from many other democratic nations in the world.”
This rush to execute is also at odds with the views of the majority of Americans.
As of 2019, 60 percent of the U.S. public favors life in prison over the death penalty — even when it comes to the worst of crimes — according to Gallop, which has been polling Americans on the topic of the death penalty since 1985.
Innocence, guilt, and the quality of mercy
Not surprisingly, one of the primary issues that has caused a great many Americans to turn against capital punishment, whether at the state or the federal level, is the fact that so many people who were originally convicted of capital cases and sentenced to die have since been found to be innocent.
Since 1973, at least 72 people have been released from death row after evidence of their innocence was uncovered. Perhaps even more disturbing are those cases of individuals who were executed, such as Cameron Todd Willingham, and Carlos de la Luna, who it now appears were very likely innocent of the crimes for which they were put to death.
In the case of Trump’s upcoming execution list, all of those on the list were convicted of horrific crimes. So, then why have so many experienced and prominent justice-involved professionals, whose job it has been to arrest and/or to convict lawbreakers, signed on to a statement that asks the DOJ to stop government-sponsored executions, now and forever?
The excerpt below from the new letter sent to the DOJ points to at least one of the reasons:
We know “that we have not executed the worst of the worst,” the letter states, “but often instead put to death the unluckiest of the unlucky – the impoverished, the poorly represented, and the most broken. Time and again, we have executed individuals with long histories of debilitating mental illness, childhoods marred by unspeakable physical and mental abuse, and intellectual disabilities that have prevented them from leading independent adult lives. We have executed individuals with trial lawyers so derelict in their duties and obligations that they never bothered to uncover long histories of illness and trauma. We have also likely executed the innocent.”
Two on the list of those that the president and the DOJ intend to execute in the coming weeks are signal examples of the principles stated above.
One of those is forty-year-old Brandon Bernard, who has been in prison half of his life. This coming Thursday, his life is scheduled to be ended in the federal execution chamber in Terre Haute, Indiana.
Twenty-one years ago Bernard took part in the murder of two youth ministers who were also a married couple. Todd and Stacie Bagley, both white, were carjacked by nineteen-year-old named Chris Vialva, and four other younger boys, Bernard, included, in Killeen, Texas, near Fort Hood. The five teenagers, who were Black, were reportedly part of a local gang, although Bernard, who had some petty theft charges but no violence in his background, seemed to be a peripheral member at best, and was not present when the Bagley’s were abducted but did participate as the crime was in progress.
Although the crime had been originally intended as a carjacking, Vialva, all at once decided to kill the Bagleys, and shot them, one after the other, point-blank in the head.
Todd Bagley died, but Stacie, unbeknownst to the five, was only rendered unconscious. After the shooting, Vialva told his companions to burn the car, and sent Bernard and another teenager to buy liter fluid. Bernard helped to set the car alight, causing Stacie to die of smoke inhalation. In court filings, Bernard admits that he helped burn the vehicle, but said he believed that the couple was already dead.
Three of the boys involved in the carjacking and the deaths of the couple, were sentenced to between twenty and thirty-five years in prison. Two have already been released. Yet Vialva and Bernard were tried as adults and were both sentenced to die at the government’s hands. Vialva was executed on September 24 of this year.
There has been a growing movement to have Bernard re-sentenced to life without parole. In fact, five out of the surviving jurors who originally put him on federal death row, are among those calling for his life to be spared.
In addition, Angela Moore, the federal prosecutor who defended Bernard’s death verdict on appeal, is now arguing strongly against it, pointing out that more mitigating evidence has emerged about Bernard’s part in the case, and that, during his decades inside prison, he has mentored young people, and has never had the smallest writeup for misbehavior.
“Black teens like Brandon are systematically denied the ‘benefit’ of their youth, which is outweighed by their race in the eyes of police, prosecutors, judges and jurors,” Moore wrote in an Op-Ed for the Indianapolis Star. “I always took pride in representing the United States as a federal prosecutor,” she continued, “and I think executing Brandon would be a terrible stain on the nation’s honor.”
Broken people breaking others
Another of the five who are slated for death in the days before the swearing in of president-elect Joe Biden, is Lisa Montgomery, who is also the only woman on the list. Montgomery’s crime was undeniably horrendous. A week before Christmas in 2004, she strangled to death a young pregnant mother and kidnapped her baby, cutting the 8-month unborn child out of her victim’s body with a knife.
From the time she was a toddler, Montgomery experienced relentless physical, and emotional abuse at the hands of her step mother, and others. When Montgomery’s older sister and protector, Diane, then an eight year old, was placed into foster care, where she landed with a caring family, the abuse for Lisa, then four, got far more intense. After the stepmother divorced the dad, then remarried, she allowed her new husband to rape the younger girl repeatedly. The new stepfather also reportedly urged his cronies to do the gang rape her on multiple occasions, urinating on her afterward. The horrors, which included being sex-trafficked by her step-mother as she got older, continued into adulthood, until Lisa Montgomery cracked mentally and emotionally. Without treatment, and proper medication, she eventually visited the worst kind of horror on Bobbie Jo Stinnett and her family, then tried to pass off Stinnett’s baby as her own.
Montgomery was originally scheduled to be executed this coming Tuesday, December 8. But due to the fact that her lawyers have contracted the coronavirus, her death has been postponed until January 12, at which time the DOJ plans to go ahead.
According to those who signed the statement to the DOJ, the fact that the president is “rushing forward with executions in the midst of a pandemic, and in the waning days of his administration, is particularly unwise and risks making U.S. communities less safe not more.
“As a longtime law enforcement leader, former Police Chief and former president of the National Police Foundation, I have been committed for decades to promoting public safety,” said Jim Bueerman, former Chief of Police of Redlands, California and former President of the National Police Foundation, and another signatory of the letter. ” Yet many members of our community recognize that the death penalty is arbitrary, cruel, and often racially-biased.”
This means, Bueerman said, the use of capital punishment, particularly now, “undermines efforts to protect communities by further eroding the fragile bonds of trust between law enforcement and the people we serve.”