DPIC Analysis: Federal Government to Conduct First Lame-Duck Federal Executions in More Than a Century

In a dra­mat­ic devi­a­tion from his­tor­i­cal prac­tices, the Trump Administration is poised to con­duct the first fed­er­al exe­cu­tions dur­ing a lame-duck pres­i­den­cy in more than a century. 

The Department of Justice has sched­uled three fed­er­al exe­cu­tions dur­ing the administration’s lame-duck peri­od: Orlando Hall on November 19, Lisa Montgomery on December 8, and Brandon Bernard on December 10. The last time the U.S. gov­ern­ment car­ried out an exe­cu­tion between a pres­i­den­tial elec­tion and the inau­gu­ra­tion of the new pres­i­dent for a fed­er­al crime was near­ly 132 years ago, on January 25, 1889, when the out­go­ing admin­is­tra­tion of Grover Cleveland (pic­tured) exe­cut­ed Richard Smith, a Choctaw Indian, for a mur­der on trib­al land in Arkansas. 

A DPIC review of General Service Administration exe­cu­tion records found that the sev­en exe­cu­tions con­duct­ed by the Trump admin­is­tra­tion in the four-month lead-up to the 2020 pres­i­den­tial elec­tion is more than any oth­er pres­i­den­tial admin­is­tra­tion had car­ried out in 78 years, dat­ing back to the admin­is­tra­tion of Franklin Roosevelt in 1942. The soar­ing num­ber of fed­er­al exe­cu­tions comes at the same time that states are on track to per­form the fewest exe­cu­tions in 37 years. According to data from the Espy file—a com­pi­la­tion of exe­cu­tions in the colonies and U.S. since 1602 — if all three cur­rent­ly sched­uled exe­cu­tions go for­ward, the ten fed­er­al civil­ian exe­cu­tions will be the most in a sin­gle year since 1896, when the Cleveland admin­is­tra­tion car­ried out 16 exe­cu­tions dur­ing his second presidency. 

The Trump admin­is­tra­tion lame-duck exe­cu­tions are ​“incon­sis­tent with American norms,” DPIC Executive Director Robert Dunham 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,” he said.

The exe­cu­tions are par­tic­u­lar­ly notable giv­en the stark dif­fer­ence in pol­i­cy between the Trump Department of Justice and the posi­tions tak­en by President-Elect Joe Biden dur­ing the elec­tion cam­paign. A 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 said dur­ing the cam­paign that he now sup­ports elim­i­nat­ing the fed­er­al death penal­ty. An aide reit­er­at­ed that posi­tion in response to a ques­tion from the New York Times, but declined to com­ment on the lame-duck executions.

Democratic mem­bers of Congress, how­ev­er, have called for the sus­pen­sion of fed­er­al exe­cu­tions dur­ing the lame-duck peri­od. In a let­ter to Attorney General William Barr on behalf of the Congressional Black Caucus, Representatives Karen Bass and Hank Johnson, the Chair and Secretary of the cau­cus, ​“urge[d] an imme­di­ate stay in the upcom­ing sched­uled fed­er­al exe­cu­tions.” The cau­cus cit­ed 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,” they said.

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, Senators Cory Booker, Patrick Leahy, and Richard Durbin and Representative Ayanna Pressley told Barr that con­tin­u­ing with exe­cu­tions ​“would be a grave injustice.”

The fed­er­al rush to exe­cute con­flicts sharply with nation­al trends that show declin­ing sup­port for cap­i­tal pun­ish­ment. States have con­duct­ed sev­en exe­cu­tions in 2020, with one more sched­uled for December 4. The last time states car­ried out few­er exe­cu­tions was in 1983 when five states car­ried out one exe­cu­tion each. The 2020 fed­er­al exe­cu­tions have raised con­cerns about trib­al sov­er­eign­ty, racial bias, and inef­fec­tive rep­re­sen­ta­tion and some have been car­ried out over the objec­tion of vic­tims’ fam­i­ly mem­bers, tri­al pros­e­cu­tors, and tri­al judges. The fed­er­al exe­cu­tions also have been linked to an out­break in COVID-19 cas­es and forced lawyers, reli­gious advi­sors, and vic­tims’ fam­i­ly mem­bers to choose between attend­ing exe­cu­tions and risk­ing their health. Two attor­neys for Lisa Montgomery con­tract­ed COVID-19 as a result of trav­el­ing to meet with their client. While states exe­cu­tions have vir­tu­al­ly come to a halt in response to pub­lic health con­cerns about the pan­dem­ic, the fed­er­al gov­ern­ment has con­tin­ued to move for­ward with executions.

In the 1888 pres­i­den­tial elec­tion, Cleveland won the pop­u­lar vote but lost the elec­toral col­lege to Benjamin Harrison. Cleveland gave the go-ahead for three exe­cu­tions in the lame-duck peri­od between his elec­tion defeat on November 6, 1888 and Harrison’s inau­gu­ra­tion on March 4, 1889. In addi­tion to Smith, the admin­is­tra­tion exe­cut­ed broth­ers Joe and Jake Tabler on November 21, 1888 for a mur­der on trib­al lands in Wichita, Kansas. Cleveland sub­se­quent­ly defeat­ed Harrison in the 1892 pres­i­den­tial elec­tion to become the only U.S. pres­i­dent to serve non-consecutive terms.

President William Howard Taft presided over a lame-duck exe­cu­tion on February 14, 1913 after his elec­tion defeat by Woodrow Wilson in the 1912 pres­i­den­tial elec­tion. However, that exe­cu­tion was car­ried out for a crime com­mit­ted under the local laws of the District of Columbia.