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.”