Over Tribal Objection, U.S. Government Sets New Execution Date for Sole Native American on Federal Death Row

The U.S. government has set an August 26, 2020 execution date for the sole Native American on federal death row, against the wishes of his tribe, the victims’ family, and the local U.S. Attorney’s office that prosecuted the case.

On July 29, 2020, the Federal Bureau of Prisons issued a notice of execution to Lezmond Mitchell, a member of the Navajo Nation convicted of the stabbing deaths of a woman and her nine-year-old granddaughter on tribal lands. If the execution is carried out, it would be the first time in more than a half-century that the federal government has executed any Native American for an offense committed on tribal lands against other members of his tribe.

The federal Major Crimes Act prohibits the government from seeking the death penalty against Native Americans for murders committed on lands designated as “Indian Country” without the prior consent of the tribe. However, before Mitchell’s trial, Navajo Nation officials wrote a letter to the federal prosecutor explaining that the “the taking of human life for vengeance” is counter to Navajo culture and religion and they opposed the death penalty for Mitchell. The victims’ family and local federal prosecutors also opposed seeking the death penalty in the case. Nonetheless, then-Attorney General John Ashcroft directed the government to seek the death penalty under what federal judges described as a “loophole” in the Major Crimes Act — a provision of the Federal Death Penalty Act that permitted federal prosecutors to pursue the death penalty for the lesser crime of “carjacking resulting in death.”

Navajo Nation Council Delegate Carl Slater called the government’s attempt to execute Mitchell a threat to tribal sovereignty. “This completely conflicts with our values,” he said. “The government has an obligation to express our values and reflect them. That’s not just to our citizens, that’s to other sovereigns that have these relationships.”

Mitchell was one of five prisoners the Department of Justice sought to execute when it announced in July 2019 that it intended to resume federal executions. He was scheduled to be put to death December 13 — the second of three prisoners federal prosecutors scheduled for execution that week. However, Mitchell already had an appeal pending in federal court when his execution was scheduled, and the U.S. Court of Appeals for the Ninth Circuit stayed his execution so it could hear argument and decide that appeal.

Mitchell’s appeal challenged his conviction and death sentence on the grounds that they were the product of anti-Native American bias in his case. He argued that federal prosecutors had improperly excluded Native-American prospective jurors from serving on his case and then made racially derogatory arguments to the jury. He further argued that Arizona law, which prohibited the defense from interviewing jurors, unconstitutionally prevented him from investigating and presenting evidence of juror bias. Mitchell sought to reopen his challenge based upon new U.S. Supreme Court decisions that permitted defendants to present statements by jurors as evidence that the verdict against him was influenced by racial stereotypes or animus.

On May 1, 2020, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit turned down Mitchell’s appeal, but two of the judges wrote separately to criticize the federal government for attempting to execute him.

Judge Morgan Christen wrote, “It is worth pausing to consider why Mitchell faces the prospect of being the first person to be executed by the federal government for an intra-Indian crime, committed in Indian Country, by virtue of a carjacking resulting in death.” Quoting tribal officials, she said “Navajo ‘culture and religion teaches us to value life and instruct against the taking of human life for vengeance.’” Although federal law gave the government the discretion to capitally prosecute Mitchell, Christen said, “[t]he imposition of the death penalty in this case is a betrayal of a promise made to the Navajo Nation, and it demonstrates a deep disrespect for tribal sovereignty. People can disagree about whether the death penalty should ever be imposed, but our history shows that the United States gave tribes the option to decide for themselves.”

The circuit court left the stay in place so that Mitchell could seek review of his claims by the U.S. Supreme Court, and the U.S. Attorney’s office in Arizona is seeking to lift the stay to permit Mitchell’s execution.

Mitchell’s lawyers, Jonathan Aminoff and Celeste Bacchi, said at the time that “The Ninth Circuit’s decision puts prisoners like Lezmond Mitchell in an impossible position. Although the Supreme Court has held that racial bias in jury deliberations renders a trial fundamentally unfair, Mr. Mitchell has been barred from investigating whether his jury was tainted by racial bias.”

Aminoff and Bacchi blasted the government’s announcement of its intent to execute Mitchell, saying it “demonstrates the ultimate disrespect for the Navajo Nation’s values and sovereignty.” “[T]he Department of Justice exploited a legal loophole and sought the death penalty against Mr. Mitchell for the federal crime of carjacking over the objection of the Navajo Nation, the victims’ family, and the local United States Attorney’s Office,” they said in a statement. “Under these circumstances, allowing Mr. Mitchell’s execution to go forward would be a grave injustice and an unprecedented affront to tribal sovereignty, and it should not be permitted to proceed.”