The announcement of Montgomery’s execution date came on Friday, Oct. 16, after business hours, according to her federal public defender, Kelley Henry. Justice Department guidelines typically give prisoners 120 days’ notice of an execution date; Montgomery got 54.
“The way the Justice Department decides who to set for execution is so opaque,” Henry told The Washington Post by phone Tuesday, noting that Montgomery is among the newest federal prisoners to be put forth for execution. “I don’t know why there is a rush for this woman at this time when there’s no possible way for her to get a fair clemency hearing.”
Montgomery’s case is a reflection of President Trump’s aggressive pursuit of capital punishment via federal executions, even as Americans’ support for the death penalty continues to erode. Under Trump, the government has carried out the highest number of federal executions ever in a single year, with statistics dating back to the Great Depression, said Robert Dunham, executive director of the nonpartisan Death Penalty Information Center.
As candidates, both Trump and President-elect Joe Biden insisted they had the stronger record on criminal justice reform, even overlapping on issues like sentencing reform and commutations. But a wide gulf between their views on the death penalty indicates just how much things are expected to change with Biden in office.
“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 the century,” Dunham said.
Officially, the Justice Department determines when federal prisoners are scheduled for execution, but it is more discretionary in practice, Dunham said. “If the president doesn’t want to carry out executions, they will not be carried out during that administration.”
The Trump administration successfully fought to resume federal executions following a 17-year hiatus and has executed seven prisoners in 2020 so far, with three more, including Montgomery, scheduled by year’s end. Nearly every one of those cases has been what Dunham characterized as an “extreme” death penalty case, including the execution of the sole Native American on federal death row, over the objections of his tribe, for murders of fellow tribe members committed on tribal lands.
Trump’s preference for harsh punishment predates his life in politics; in 1989, he took out full-page ads calling for the return of the death penalty after the arrest of the Central Park Five — and decades later refused to apologize after they were exonerated. As president, he has praised dictators such as Philippine President Rodrigo Duterte for executing drug dealers and proposed the death penalty for people who sell opioids.
Biden, meanwhile, has made eliminating the death penalty part of his criminal justice platform, a move that breaks from his past support for the death penalty and makes him the first Democratic presidential candidate or president-elect to take a consummately anti-death penalty stance since Michael Dukakis in 1988.
Representatives for Biden did not return requests for comment, but Biden has most recently said he supports ending the death penalty through legislation and incentivizing the remaining death penalty states to do the same.
Biden and the Democratic Party have shifted their stance from 2012, when they condemned “arbitrary” use of the death penalty without rejecting the punishment outright.
Public support for the death penalty now hovers near a 48-year low, a trend Hannah Cox attributes to greater availability of information about wrongful convictions and other problems with the capital punishment system.
“The death penalty is so bad, so failed and has so many issues, that there’s sort of something there [to motivate] everybody,” said Cox, the national manager of the group Conservatives Concerned About the Death Penalty.
Conservatives who align with Biden’s goal of abolishing the death penalty tend to be interested in limiting the role of government, protecting life and saving taxpayer money, Cox said. “The death penalty is an opportunity cost — it’s money we’re not spending on things that actually prevent crimes in the first place.”
Both Cox and Dunham acknowledge there are still strong supporters of capital punishment, but the momentum of states abolishing the death penalty and the growing bipartisan consensus against it put Biden’s goal of ending capital punishment in the realm of possibility.
A legislative change on the death penalty is Biden’s likeliest avenue, as the three newest Supreme Court justices and many federal appellate judges appointed by Trump are unlikely to expand on death penalty prohibitions, Dunham said.
Cox said prosecutors have been the most reliable holdouts to death penalty reform, but even that support has shown signs of softening.
Montgomery, the federal death row prisoner, was convicted in 2007 of strangling Bobbie Jo Stinnett to death when Stinnett was eight months pregnant and then kidnapping Stinnett’s unborn child.
On Wednesday, current and former prosecutors were among the more than 1,000 supporters calling for Trump to commute Montgomery’s execution, citing her severe mental illness and history of severe abuse as relevant mitigating factors that should make her eligible for life without parole instead of death.
“Lisa’s experiences as a victim of horrific sexual violence, physical abuse, and being trafficked as a child do not excuse her crime,” a group of 41 current and former prosecutors wrote in a letter to Trump. “But her history provides us with an important explanation that would influence any sentencing recommendation we made as prosecutors.”