After Trump’s rush of executions, President Biden and a Democratic Congress want to abolish the federal death penalty

By: - January 21, 2021 12:22 pm

While former President Trump was ending his term by granting last-minute clemency to aides and those in his close circles convicted of white-collar crimes and obstruction of justice, his administration was ordering the executions of 13 people on federal death row, the final stroke of his administration’s “law and order” campaign.

In a memo ordering the executions, which were carried out using a new lethal drug concoction, former Attorney General William Barr wrote, “We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”

But President Joe Biden has vowed to end the federal death penalty, which could affect the nearly 50 people currently on death row. His campaign website stated that he “will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”

Biden could issue an executive order to halt federal executions. But advocacy groups are calling on Congress to abolish the death penalty in order to enshrine the ban into law. 

“The only permanent and serious response to what is happening is abolition,” said Madhu Swarna, staff attorney at the Center for Death Penalty Litigation, a Durham-based nonprofit law firm that represents people on death row in North Carolina.

In Congress, U.S. Rep. Ayanna Pressley, D-Mass., and incoming chair of the Judiciary Committee Sen. Dick Durbin, D-Ill., plan to introduce a bill to prohibit the federal death penalty and resentence those now on the federal death row. The death sentences likely would be reduced to life without parole. 

North Carolina U.S. Reps. Alma Adams and G.K. Butterfield, both Democrats, are among the proposed bill’s 65 co-sponsors.

The bill is endorsed by more than 200 organizations and advocacy groups.

Three people on federal death row were convicted of crimes in North Carolina. Richard Allen Jackson was convicted of raping and murdering a jogger in 2001 in the Pisgah National Forest. Marcivicci Aquilia Barnette was sentenced to death in 1998 for carjacking and killing a man in Charlotte; Barnette then drove the victim’s vehicle to Virginia and murdered his ex-girlfriend. Alejandro Umana was a gang member who shot and killed two brothers at a restaurant in Greensboro in 2010.

Policy Watch contacted the mother of one of the victims, who declined to comment.

After Umana’s death sentence, federal prosecutor and U.S. Attorney Anne Tompkins was quoted in a Department of Justice press release as saying, “The death penalty in this case is fair, just, and merited.” Tompkins added, “The U.S. Attorney’s Office, based upon the facts and evidence, advocated for the death penalty, and the jury agreed that Umana deserved nothing less than the death penalty.”

But death penalty opponents point out that wrongful convictions are not uncommon. More than 170 people — 10 from North Carolina — have been exonerated and released from death row since 1973. Of those exonerated, more than half — 92 — were Black.

(Map: Federal Capital Habeas Project)

Ruth Friedman is the director of the Federal Capital Habeas Project, which defended Daniel Lee, convicted of murdering three people. He had spent more than 20 years on federal death row and was the first of the 13 who were executed under the Trump administration. The process of federal post-conviction proceedings, where the defense challenges the powerful federal prosecutors for alleged mishandling of cases, needs to be reformed, Friedman said. 

“The number of the people who are executed in the federal system — remember you only get one shot in post-conviction, not two — had claims like that, where information was being withheld improperly by the government, but it was too late to get into court, and over and over again you saw that happen,” she said.

Supreme Court Justice Sonia Sotomayor called the recent 13 cases, resumed after a 17-year hiatus, an “unprecedented rush of federal executions,” in her opposition to the execution of the last of the 13, Dustin Higgs. In her opinion, Sotomayor was joined by Justice Elena Kagan and Justice Stephen Breyer.

In a 2005 ruling authored by former Justice Anthony Kennedy, the Supreme Court ruled that “capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes,” and whose extreme culpability makes them “the most deserving of execution.”

But wrongful convictions and botched executions have raised questions about the constitutionality of the death penalty. Former North Carolina Supreme Court Chief Justice James Exum, Jr. raised these issues in a recent law review article in which he stated: “I have concluded that a reliable death penalty system is beyond the ability of human beings to devise.”

Swarna argued that many of the executed didn’t get true due process for their cases. For example, a lower court granted a stay of execution to Lisa Montgomery because of her incompetence in understanding the process that would end her life. Montgomery was repeatedly abused and raped as a child, beginning at age 3, and later sold into prostitution by her mother, who also forced her to be sterilized. Montgomery strangled a pregnant woman and removed the baby from her womb in Missouri in 2004.

United Nations human rights experts petitioned the Trump administration to grant for clemency to Montgomery in light of her traumatic personal background and mental health issues — matters, they noted, that “were not adequately considered during the trial.”.

“When it comes down to looking at all of the injustices in the system: racism, classism, and sexism — who gets the death penalty, whose lives are valued in terms of white victims resulting harsher sentences for Black defendants — all of that is a broken system that we can’t fix,” Swarna said.

The U.S. Supreme Court lifted the stay, however, and Montgomery was executed earlier this month.

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Yanqi Xu

Yanqi Xu, Courts, Law and Democracy Reporter, came to Policy Watch in December of 2020 from the Investigative Reporting Workshop in D.C., where she combined data and reporting to cover public accountability issues. Yanqi graduated with a master’s degree in journalism from the University of Missouri in 2019. Her multimedia work appeared in PolitiFact and the Columbia Missourian, and was featured on the local NPR and NBC affiliates. Originally from China, Yanqi started her career producing newscasts to tell people what’s going on around the world.