A Rush to Execute: What’s the Urgency?

Ten federal executions under President Donald Trump in 2020 would be the most in any single year since 1896.

By Joette Katz 

My position on the death penalty is no secret. I represented Michael Ross in 1987 and voiced my opposition to the death penalty as an associate justice of the Connecticut Supreme Court in numerous cases going back to 1995, long before that position became popular. But I am not writing now to voice my opposition to the federal government’s execution of persons on death row, rather to express my disdain for the sense of urgency with which federal executions are being held during this lame-duck period. As was observed by three dissenting justices in State v. Cobb, 234 Conn 735, 783 (1995): “Death is irrevocable. It is the ultimate penalty that society can impose and, once imposed, cannot be reversed.”

There have now been eight federal executions in 18 weeks under President Donald Trump. Orlando Hall was executed Nov. 19, 2020. This was the first federal execution under a lame-duck president in more than a century—since 1889 to be exact—131 years ago under then-President Grover Cleveland. Two more federal executions are currently scheduled: Lisa Montgomery on Dec. 8 and Brandon Bernard on Dec. 10, and more may still come before Jan. 20. If the above-mentioned two are carried out, the 10 federal executions under Trump will be the most in any single year since 1896, when Cleveland’s administration carried out 16 during his second presidency. And the seven executions in the months leading up to the 2020 election is more than the number of executions carried out under any other administration since President Harry S. Truman in 1942.

Therefore, I think it’s safe to echo the observations of the Death Penalty Information Center Executive Director Robert Dunham, who told The New York Times. “If the administration followed the normal rules of civility that have been followed throughout the history in this country, it wouldn’t be an issue. The executions wouldn’t go forward.” Indeed, the Trump administration’s lame-duck executions are inconsistent with American norms.

This recent rash of executions is also in contrast to the decrease in the number of executions being carried out in states that still have the death penalty. The landscape has changed: more than 170 people on death row have been exonerated; the Supreme Court has eliminated the death penalty for persons with mental disability and juveniles; its use as a deterrent has been widely rejected; and the role of race has been extensively studied and generally recognized in connection with its application. Consequently, the number of persons executed each year has declined, especially in recent years: there were seven executions carried out in 2020 among the 28 states that still have the death penalty, and in 2019, there were 22 state executions and zero federal executions.

This recent surge of executions has not gone unnoticed. Democratic members of Congress have called for the suspension of federal executions during the lame-duck period. Reps. Karen Bass and Hank Johnson, the chair and secretary of the Congressional Black Caucus, in a letter to U.S. Attorney General William Barr, “urge[d] an immediate stay in the upcoming scheduled federal executions,” citing the “senseless and unnecessary risk to innocent persons charged with carrying out federal executions” during a worsening pandemic that, they say, “will make any scheduled execution a tinderbox for further outbreaks and exacerbate concerns over the possibility of miscarriage of justice.” Carrying out these executions at a time in which “nearly every state in the nation has postponed executions due to significant public health concerns stemming from the COVID-19 pandemic is reckless and immoral.”

In a separate letter, three U.S. senators and one member of Congress urged the suspension of federal executions “so the incoming Biden-Harris administration can evaluate and determine the future use of the death penalty by the federal government.” Highlighting numerous flaws in the death-penalty system, Sens. Cory Booker, Patrick Leahy and Richard Durbin and Rep. Ayanna Pressley told Barr that continuing with executions “would be a grave injustice.”

President-elect Biden has changed his views on the death penalty. As co-author of 1990s crime bills that expanded the federal death penalty and reduced state death-row prisoners’ access to federal courts to challenge the constitutionality of their convictions and sentences, Biden now supports eliminating the federal death penalty. Maybe Trump is modeling himself after Cleveland who, after losing the 1888 presidential election, gave the go-ahead for three executions in the lame-duck period between his election defeat and Harrison’s inauguration, and then subsequently defeated Harrison in the 1892 presidential election to become the only U.S. president to serve non-consecutive terms.

Whether Trump is catering to his base or wants to use these numbers for talking points in his next run for office, there is no urgency here. The federal executions have been linked to an outbreak in COVID-19 cases, forcing lawyers to represent their clients or risk death (two attorneys for Montgomery contracted COVID-19 as a result of traveling to meet with their client). Public health concerns about the pandemic have resulted in state executions to be put on hold, but the federal government has continued to move forward with executions.

It sounds trite to state the obvious, but while more than 250,000 people have died from a pandemic, and there is an enormous amount of work needed to help ensure the safe transition of power from one administration to the next, does the execution of people on death row really need to be a priority?

Shipman and Goodwin partner Joette Katz is a former associate justice of the Connecticut Supreme Court and former commissioner of the state Department of Children and Families.