U.S. Government Sets Two More Execution Dates, Seeking to Put to Death the First Woman and the Youngest Offender in More Than Six Decades

The fed­er­al gov­ern­ment intends to con­tin­ue its unprece­dent­ed exe­cu­tion spree into December, sched­ul­ing the exe­cu­tions of the first woman and the youngest offend­er put to death by fed­er­al author­i­ties in near­ly sev­en decades. In a Friday evening announce­ment, the U.S. Department of Justice announced on October 16, 2020 that it had set the exe­cu­tion of Lisa Montgomery (pic­tured) for December 8 and Brandon Bernard for December 10. 

Montgomery, a vic­tim of sex traf­fick­ing who suf­fers from psy­chosis and com­plex Posttraumatic Stress Disorder, is the only woman on fed­er­al death row. Bernard (pic­tured below), the youngest offend­er on fed­er­al death row, was 18-years-old when he and four oth­er teens killed a young cou­ple on fed­er­al grounds in Texas.

The fed­er­al gov­ern­ment has car­ried out sev­en exe­cu­tions since July 14, 2020, more than in any of the 93 pri­or years for which the Federal Bureau of Prisons has his­tor­i­cal infor­ma­tion. The num­ber equals the cumu­la­tive total of pris­on­ers exe­cut­ed by the fed­er­al gov­ern­ment over the last 66 years. At the same time, states are on pace to car­ry out the fewest num­ber of exe­cu­tions in 37 years and will impose few­er new death sen­tences in 2020 than in any oth­er year since cap­i­tal sen­tenc­ing resumed in the United States after the U.S. Supreme Court struck down all exist­ing death-penal­ty statutes in the U.S. in Furman v. Georgia in 1972. The Department of Justice also has sched­uled the exe­cu­tion of Orlando Hall for November 19, giv­ing it three of the four exe­cu­tions still sched­uled in the remain­der of 2020.

The last time the fed­er­al gov­ern­ment exe­cut­ed a woman was in 1953, and the last time it exe­cut­ed a per­son as young as eigh­teen at the time of the crime was in 1952. Prior to the cur­rent exe­cu­tion spree, the fed­er­al gov­ern­ment had not exe­cut­ed any­one in sev­en­teen years. The admin­is­tra­tion ini­ti­at­ed its string of exe­cu­tions at a time in which near­ly every oth­er juris­dic­tion in the nation had post­poned putting pris­on­ers to death out of pub­lic health con­cerns aris­ing from the glob­al COVID-19 pandemic. 

Two states — Missouri and Texas — each exe­cut­ed one pris­on­er ear­ly in the pan­dem­ic, and with­in weeks each expe­ri­enced increas­es in COVID-19 infec­tions in the facil­i­ties in which the exe­cu­tions occurred. The fed­er­al gov­ern­ment nonethe­less brought hun­dreds of peo­ple from across the coun­try into the fed­er­al prison com­plex in Terre Haute, Indiana to car­ry out exe­cu­tions dur­ing the pan­dem­ic, even after a mem­ber of the exe­cu­tion plan­ning team who had been exposed in close quar­ters to oth­ers involved in the exe­cu­tions test­ed pos­i­tive for COVID-19. Documents released in an ACLU law­suit reveal that the gov­ern­ment con­duct­ed inad­e­quate con­tact-trac­ing after the COVID-19 expo­sure and imple­ment­ed hap­haz­ard pub­lic health pro­tec­tive mea­sures. Bureau of Prisons data doc­u­ment­ed a spike in COVID-19 infec­tions at the fed­er­al prison com­plex after the July executions. 

Montgomery was sen­tenced to death by the U.S. District Court for the Western District of Missouri for fed­er­al kid­nap­ping result­ing in death after she mur­dered a preg­nant woman and cut her baby out of her womb, treat­ing the baby as hers. Montgomery’s lawyers argue that she suf­fered from a life­time of hor­rif­ic abuse includ­ing sex traf­fick­ing and repeat­ed gang rapes. As a result of this trau­ma and a fam­i­ly his­to­ry of men­tal ill­ness, Montgomery has com­plex Post Traumatic Stress Disorder and expe­ri­ences psy­chot­ic episodes. She imme­di­ate­ly expressed remorse for her actions. One of her lawyers, assis­tant fed­er­al pub­lic defend­er Kelley Henry, explained that Montgomery’s jury nev­er learned of her his­to­ry of severe trau­ma and men­tal ill­ness because she ​“was rep­re­sent­ed at tri­al by an incom­pe­tent lawyer who has the dubi­ous dis­tinc­tion of hav­ing more clients on fed­er­al death row than any oth­er attor­ney.” Henry said that Montgomery’s ​“severe men­tal ill­ness and the dev­as­tat­ing impacts of her child­hood trau­ma make exe­cut­ing her a profound injustice.”

Bernard, whose code­fen­dant Christopher Vialva was exe­cut­ed last month, is the third Black pris­on­er the fed­er­al gov­ern­ment has sched­uled for exe­cu­tion this year. He was sen­tenced to death by a Texas dis­trict court for the mur­der of a cou­ple in a remote area that is part of Fort Hood dur­ing a car­jack­ing and rob­bery. Bernard was 18 at the time of the crime, and Vialva was 19. The three oth­er code­fen­dants could not be cap­i­tal­ly tried because they were aged 15 and 16. Vialva’s exe­cu­tion raised ques­tions about whether the death penal­ty is appro­pri­ate for teenage offend­ers, with a neu­ro­science expert explain­ing that ​“to make a final judg­ment about a person’s life based on a crime he com­mit­ted as a teenag­er is to ignore what the last 20-plus years of research has taught us about the devel­op­ing brains of teenagers and adolescents.”

Bernard’s cur­rent attor­ney, Robert Owen, has argued that the gov­ern­ment ignored evi­dence that Bernard was not the most cul­pa­ble of his code­fen­dants, with the tri­al attor­neys mis­lead­ing the jury by hid­ing the fact that the state’s own expert con­sid­ered Bernard to occu­py the low­est rung in the group’s hier­ar­chy. Owen also char­ac­ter­ized as ​“junk sci­ence” the tes­ti­mo­ny the gov­ern­ment used to argue that Bernard would pose a future dan­ger, even in prison. Bernard’s lawyers, how­ev­er, pro­vid­ed no expert evi­dence to counter this asser­tion. Owen points to Bernard’s dis­ci­pli­nary his­to­ry to show just how wrong that evi­dence was: ​“Now 40, Mr. Bernard has spent more than half his life in prison, where his con­duct has been exem­plary. He has not com­mit­ted a sin­gle dis­ci­pli­nary infrac­tion.” Because of evi­dence that was not pre­sent­ed at tri­al and because of Bernard’s behav­ior in prison, a major­i­ty of the sur­viv­ing jurors who sen­tenced Bernard to death now oppose his execution.