Trump Administration Presses Forward with Death Penalty Despite Election Defeat, Announcing 3 More Death Warrants and More Capital Prosecutions

Despite its defeat at the polls on November 3, the Trump administration is pressing forward with efforts to conduct an historically unprecedented number of lame duck executions and in announcing new federal capital prosecutions that it will not be in position to carry out.

After the close of business on Friday, November 20, 2020, one day after carrying out the first execution during a presidential transition period in more than a century, the Department of Justice (DOJ) announced its intention to proceed with three additional executions before Joseph R. Biden is sworn in as the nation’s 46^th president on January 20, 2021. DOJ set the execution of Alfred Bourgeois for December 11, 2020, the same week it is scheduled to execute Lisa Montgomery, the first woman to be executed by the federal government in more than 60 years, and Brandon Bernard, the youngest offender to be executed by the federal government in 68 years. It also scheduled the executions of Corey Johnson and Dustin Higgs for January 14 and January 15, 2021, less than one week before Biden takes office.

No lame duck president has carried out more than one execution in a presidential transition period since Grover Cleveland’s first presidency in 1888-1889. If all of the scheduled executions are carried out, they will be the most ever during a transition period between U.S. presidencies. According to the Espy file, an historical compilation of executions in the U.S. and its colonies, the five executions conducted between November 1884 and February 12, 1885 at the end of Chester A. Arthur’s presidency are the most in American history.

“This has been an administration that’s been historically out of step. Not just out of step with the views of America in 2020, but out of step with federal practices by administrations, Democratic or Republican, for the course of [a] century,” Death Penalty Information Center Executive Director Robert Dunham told The Washington Post.

Federal prosecutors also filed court papers in federal court in Long Island, New York on November 20 announcing their intent to seek the death penalty against Jairo Saenz in connection with seven murders they allege were committed by a local clique said to be associated with the MS-13 gang. That action followed by one day the appointment of death-penalty counsel to represent five defendants charged with capital murder by federal prosecutors in Houston.

The new announcements may be largely symbolic, for the ultimate decision on whether the cases will proceed to trial as capital prosecutions will be made by the incoming Biden administration. In the interim period, federal taxpayers will be required to pay for six sets of capitally qualified lawyers to begin the extensive and costly preparation for a federal death penalty trial that may ultimately be non-capital.

The latest scheduled executions add further fuel to the controversy surrounding the arbitrariness of the federal death penalty. The U.S. Supreme Court declared in 2002 that subjecting individuals with intellectual disability to the death penalty violates the federal constitutional prohibition against cruel and unusual punishments. Both Bourgeois and Johnson have IQ scores within the clinically accepted range for intellectual disability, but neither have been able to get the federal courts to review their claims using medically appropriate definitions of the disorder. Higgs is on federal death row for a murder he did not commit. The actual shooter in his case was tried separately and was sentenced to life imprisonment. The administration scheduled the execution of Higgs, who is Black, on the birthday of civil rights icon Martin Luther King, Jr.

President-elect Biden said during the campaign that he would work to end the federal death penalty and create incentives for states to abandon the practice. He did not directly respond to the Trump administration’s actions, but his press secretary TJ Ducklo told Associated Press that Biden “opposes the death penalty now and in the future.”