Three Cases Illustrate Federal Death Penalty in Flux as Biden Team Takes Reins at DOJ

Developments in three fed­er­al cap­i­tal cas­es at the tran­si­tion between pres­i­den­tial admin­is­tra­tions illus­trate the choic­es that the new Biden Department of Justice will face in for­mu­lat­ing its pol­i­cy on the fed­er­al death penal­ty. The cas­es, each at a crit­i­cal turn­ing point in deter­min­ing whether to move for­ward in a poten­tial­ly cap­i­tal pros­e­cu­tion, will shed light on the strength of the DOJ leadership’s com­mit­ment to imple­ment­ing the president’s pledge to end the fed­er­al death penalty. 

On January 19, 2021, the U.S. Court of Appeals for the Tenth Circuit over­turned fed­er­al death-row pris­on­er Kenneth Barrett​’s 2005 death sen­tence for the mur­der of an Oklahoma Highway Patrol troop­er. On that same day, fed­er­al pros­e­cu­tors noti­fied the U.S. District Court in Connecticut that they were no longer seek­ing a new sen­tenc­ing hear­ing for Azibo Aquart, whose death sen­tence had been over­turned in December 2018. And on the first full day of the Biden admin­is­tra­tion, January 21, fed­er­al pros­e­cu­tors in Massachusetts noti­fied the fed­er­al court that they were await­ing direc­tion from the new admin­is­tra­tion on whether to seek the death penal­ty against Louis Coleman.

During the course of the 2020 pre­sen­tial elec­tion, then-can­di­date Joe Biden’s cam­paign website pledged that he would work to elim­i­nate the death penal­ty. Some of the actions avail­able to the pres­i­dent include sup­port­ing leg­is­la­tion to repeal the fed­er­al death penal­ty, rescind­ing death-penal­ty reg­u­la­tions adopt­ed by the Trump admin­is­tra­tion, declin­ing to pur­sue new cap­i­tal cas­es, halt­ing exist­ing cap­i­tal pros­e­cu­tions, declin­ing to appeal cas­es in which death sen­tences have been over­turned, and com­mut­ing the death sen­tences of the 49 pris­on­ers cur­rent­ly on fed­er­al death row. 

What the Department of Justice decides on these cas­es, Death Penalty Information Center Executive Director Robert Dunham told United Press International, ​“will be an ear­ly indi­ca­tor of how seri­ous­ly they intend to fol­low through on President Biden’s cam­paign state­ment that he will work to end the fed­er­al death penalty.”

The Tenth Circuit over­turned Barrett’s death sen­tence on January 19, find­ing that his court-appoint­ed lawyers had unrea­son­ably failed to inves­ti­gate and present a broad range of mit­i­gat­ing evi­dence that was avail­able to per­suade at least one juror to spare his life. That includ­ed evi­dence of brain dam­age, a fam­i­ly his­to­ry of men­tal ill­ness, Barrett’s own men­tal ill­ness (bipo­lar dis­or­der and PTSD), and a his­to­ry of chron­ic child­hood abuse and trau­ma. Federal pros­e­cu­tors ini­tial­ly chose to cap­i­tal­ly pros­e­cute Barrett only after an Oklahoma jury had con­vict­ed him of less­er mur­der charges that were not pun­ish­able by death.

In late December 2020, fed­er­al pros­e­cu­tors informed Aquart’s defense coun­sel that they were drop­ping their efforts to have him resen­tenced to death and would not be going for­ward with a new cap­i­tal sen­tenc­ing tri­al. They informed the court of their deci­sion on January 19. As a result, Aquart, whose death sen­tence had been over­turned based on pros­e­cu­to­r­i­al mis­con­duct dur­ing wit­ness cross-exam­i­na­tion and in the government’s clos­ing argu­ment, will be resen­tenced to life impris­on­ment without parole. 

In Coleman’s case, Massachusetts Assistant U.S. Attorney Robert Richardson told the court dur­ing a pre­tri­al hear­ing that his office was await­ing guid­ance from the incom­ing Department of Justice before decid­ing whether to pur­sue the death penal­ty on charges of kid­nap­ping result­ing in death. ​“Given on where we are in terms of a new admin­is­tra­tion, it’s not some­thing that is going to hap­pen immi­nent­ly,” Richardson said. Underscoring the impact of that deter­mi­na­tion on the entire tri­al process, Judge Dennis Saylor told pros­e­cu­tors that the ​“deci­sion needs to be a pri­or­i­ty. … It will involve a gigan­tic waste of time depend­ing on what path we go.” 

According to Federal Capital Resource Counsel, 33 defen­dants were await­ing or cur­rent­ly on tri­al on fed­er­al cap­i­tal charges as of January 19, 2021. Numerous oth­ers are await­ing a deter­mi­na­tion of whether fed­er­al pros­e­cu­tors will seek death in their cas­es. President Biden has nom­i­nat­ed Merrick Garland, a judge of the U.S. Court of Appeals for the District of Columbia Circuit whom for­mer President Barack Obama nom­i­nat­ed for a seat on the U.S. Supreme Court, to serve as U.S. Attorney General. Garland has not yet been con­firmed by the U.S. Senate.

On January 22, 35 mem­bers of Congress wrote a let­ter to President Biden urg­ing him to com­mute the death sen­tences of the 49 pris­on­ers cur­rent­ly on fed­er­al death row.