Op-Eds Highlight Disparities in Federal Death Penalty, as 1,000 Faith Leaders and the European Union Urge Justice Department to Halt Executions

As the scheduled July 13, 2020 date for the first federal executions in 17 years approaches, faith leaders, diplomats, and legal experts have asked the federal government to call them off. 1,000 faith leaders from across the country have urged President Trump and Attorney General Barr to halt the executions. They are joined by the European Union, which on July 10 also issued a statement strongly opposing the resumption of federal executions. Complementing their efforts, two recent op-eds by death-penalty experts describe a federal death-penalty system that, they say, is plagued by endemic bias and arbitrariness.

On July 7, more than 1,000 faith leaders from a variety of religious backgrounds issued a statement in opposition to the four scheduled executions. They wrote: “we call on President Trump and Attorney General Barr to stop the scheduled federal executions. As our country grapples with the COVID 19 pandemic, an economic crisis, and systemic racism in the criminal legal system, we should be focused on protecting and preserving life, not carrying out executions.” The statement was signed by bishops, pastors, rabbis, and others representing a range of Christian, Jewish, and Buddhist sects.

One signatory, Carlos Malavé, Executive Director of Christian Churches Together, said, “As an Evangelical, I am heartbroken to see our country return to killing its citizens. We have seen so much death in recent months and people are hurting. Restarting executions during a pandemic should be the farthest thing from our minds.” Archbishop Charles C. Thompson from the Catholic Archdiocese of Indianapolis, which includes Terre Haute, where federal death row is located, issued a separate statement noting, “The taking of life, no matter how ‘sanitary’ or ‘humane’, is always an act of violence. While the Church is certainly concerned with the soul of every person, including those on death row, I make this plea against the death penalty out of ultimate concern for the eternal soul of humanity.”

From Brussels, Belgium, the European Union released a statement saying it “strongly opposes the decision of the United States Department of Justice to resume the federal death penalty after a 17-year hiatus.” The resumption of executions, the EU said, “runs counter to the overall trend in the United States and worldwide to abolish the death penalty, either by law or in practice.” The EU called the death penalty “a cruel, inhuman and degrading punishment [that is] incompatible with the inalienable right to life, fails to provide effective deterrence to criminal behaviour, and is irreversible.” The European Union said it “stands firmly and unequivocally by the victims of crimes and their families, and supports the application of effective, non-lethal punishments.”

A July 7 op-ed in The Hill by NAACP Legal Defense and Educational Fund (LDF) Litigation Director Samuel Spital and a Bloomberg Law commentary by DPIC Executive Director Robert Dunham on July 8 criticized the planned executions, citing extensive evidence that the federal death penalty has been arbitrarily and discriminatorily applied.

Spital’s op-ed echoed the faith leaders’ concerns about the impact of systemic racism on the administration of the federal death penalty. Over the course of more than three decades (1988-2019), he wrote, the federal government has authorized the capital prosecution of more than 500 defendants. More than two-thirds, he said, were Black or Latinx and, as a result, so are the majority of people on federal death row today. Spital asks, “By singling out four white men for the first executions since 2003, is the government trying to obscure this reality?”

The federal death penalty’s discriminatory application, Spital writes, is aggravated by its geographic arbitrariness. As with state death-penalty cases, federal capital prosecutions are concentrated in a few outlier “hot spots” — Texas, Virginia, and Missouri — that exhibit stark racial disparities. “In Texas over the past 30 years, 75 percent of federal death sentences were imposed on Black or Latinx men,” Spital says. “All seven of the current death row prisoners from Virginia are people of color. Every person under a federal death sentence from the Eastern District of Missouri is a Black man.”

Spital also notes that, as is the case at the state level, federal prosecutors exclude Black jurors at disproportionate rates. He concludes, “Barr’s Justice Department appears to have taken no steps to find out why these trends continue or how it could stop them. Instead, it chooses to restart executions and selects four white men as its first targets. … Sending these four white men to their deaths will not address the racism that inheres in the federal death penalty. Much less will it respond to the crisis of police violence against Black people that is testing the soul of our democracy. It will simply result in the deaths of four white men — and open the door to further executions of the mostly Black and Latinx men on the federal death row. If ever there were a time for the federal government to stop the machinery of death, that time is now.”

Dunham’s commentary describes widespread defendant-based arbitrariness in the administration of the federal death penalty. He writes that functional impairments, including “severe mental illness, brain damage, or intellectual disabilities, and long histories of childhood trauma and abuse” are “prevalent among those sentenced to death in the federal system.” A recent DPIC analysis, he says, “found that more than 85% of those facing federal execution have at least one serious impairment that significantly reduces their culpability, and 63% had two or more of these impairments.” However, because federal prisoners are often not provided with effective representation at trial and inadequate investigations were performed, “these figures likely underestimate the true rate of impairment.”

The prisoners slated for upcoming execution exemplify this phenomenon, he says. Daniel Lewis Lee, like three-quarters of federal death-row prisoners, endured chronic violence throughout his childhood, including beatings so severe he thought he would die. Wesley Purkey, like half of all federally death-sentenced prisoners, exhibits signs of severe mental illness. His attorneys argue that the combined effects of “Alzheimer’s disease and dementia, schizophrenia, and a lifetime of trauma… have left him unable to comprehend why the federal government plans to execute him.” Dustin Honken was terrorized by his violent, alcoholic, criminal father, resulting in mental health problems, but the jury never heard evidence about his background. And Keith Nelson, scheduled for execution on August 28, is among the 29% of federal death-row prisoners with developmental brain damage, traumatic brain injury, and/or intellectual disability.

Lee, Honken, and Nelson, along with 42% of federal death-row prisoners, were 25 or younger at the time of their crimes, placing them in an age category that neuroscience research has “conclusively established” made them “physiologically predisposed to risky, impulsive decision-making because the regions of the brain responsible for executive functioning, impulse control, and rational decision-making don’t fully develop until at least their mid-20s.”

Dunham’s op-ed concludes, “Capital punishment is supposed to be reserved only for those who commit the worst crimes and who are the most culpable. But those on federal death row come from some of the most vulnerable communities in America and, given the extensive evidence of their impairments, it is difficult to see how the vast majority fit those criteria. Without first honestly confronting and addressing these seemingly intractable issues, resuming federal executions is reckless and arbitrary.”