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.”