The Justice Department’s push to carry out executions during the run-up to President-elect Joe Biden’s inauguration — including scheduling three during the week before he takes office — has drawn sharp condemnation from critics who denounced these actions during the lame-duck window.
“It’s just unconscionable to move forward with executions at this point, in this situation,” said Shawn Nolan, a lawyer for two of the federal death-row inmates facing execution. “Joe Biden ran on a platform of not moving forward with executions. And they shouldn’t move forward with these executions during this transition period.”
A Justice Department official disputed that reasoning, asserting that Attorney General William P. Barr had been routinely scheduling executions, as the law dictated he should do, since concluding an Obama administration-era review of the federal death penalty last year.
The official, who spoke on the condition of anonymity because of the ongoing litigation surrounding many death penalty cases, said both Democratic and Republican attorneys general had sought the death penalty in cases throughout the years, and thus “there were many people languishing on death row.”
“It’s his job to execute the law,” the official said. “It’s been reviewed by multiple courts in each case. And this has nothing to do with who’s coming into power. It shouldn’t be a Republican or Democrat thing. It’s the law.”
Though the death penalty was not a high-profile topic in the presidential campaign, it marked an area of stark disagreement between Biden and President Trump, who has long supported capital punishment.
Biden “opposes the death penalty, now and in the future, and as president will work to end its use,” Biden spokesman TJ Ducklo said in a statement. On Biden’s website, his criminal justice plan says he “will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”
The Trump administration’s emphasis on the death penalty in its final weeks in office is not limited to scheduling executions.
The Justice Department published a rule change, set to take effect this month, allowing federal executions by methods other than lethal injection, including firing squads or electrocution, in certain circumstances. And last month, the U.S. attorney’s office for the Eastern District of New York announced that Barr had authorized prosecutors to seek the death penalty against a 24-year-old described as an MS-13 gang member.
Barr has defended his move to resume federal executions in the face of criticism. Over the summer, after the first federal execution since 2003, Barr said in a statement that Americans “have made the considered choice to permit capital punishment for the most egregious federal crimes, and justice was done today.”
While some executions planned in states were delayed because of the coronavirus pandemic, the Justice Department has continued to schedule and administer lethal injections. So far this year, the Trump administration has carried out eight federal executions, more than twice the entire number conducted in the previous three decades.
Federal death sentences are handed down far less frequently than the same punishment is imposed in states, which account for the vast majority of death penalty activity nationwide. The Justice Department carried out three federal executions in President George W. Bush’s first term, and during the Obama administration, the department imposed a moratorium on federal executions while reviewing its lethal-injection procedures.
Barr announced in October that two federal executions were scheduled and then, after Biden was elected last month, set three more.
“What they’re doing is exploiting these for political reasons,” said Elisabeth Semel, the director of the Death Penalty Clinic at the University of California at Berkeley. “It’s such a patent insult to the incoming administration, because the Department of Justice knows that Trump, to the extent he pays attention to anything, is aware that this is an issue the incoming administration wants to investigate, wants to address. Which makes the conduct all the more outrageous.”
When the Justice Department announced the execution dates, it emphasized that the inmates, some of whom have been on death row for decades, were involved in brutal killings. Their attorneys argue that some of the inmates have intellectual disabilities, mental illnesses and other mitigating circumstances in their cases.
The first of these executions is set for next week, when officials plan to carry out the death penalty on Brandon Bernard, who was involved in the killing of two youth ministers, Todd and Stacie Bagley, in an isolated area on the Fort Hood military reservation in 1999 when Bernard was 18, authorities said.
According to a Justice Department summary of the case, Todd Bagley agreed to give a ride to some of Bernard’s associates, and they forced him and Stacie into the trunk of the car, then drove it to the reservation. There, according to the Justice Department summary and news accounts, Christopher Vialva, one of Bernard’s associates who was then 19, shot both ministers in the head, and Bernard set the car on fire. Stacie Bagley ultimately died of smoke inhalation; Todd Bagley was killed by the gunshot. Bernard was convicted in June 2000 of murder.
Vialva was executed in September. A lawyer for Bernard has argued that his trial was flawed and that some jurors now oppose his death sentence because of what they see as his lesser culpability.
Alfred Bourgeois, whose execution is set a day after Bernard’s, killed his 2-year-old daughter, according to the Justice Department. After a paternity test revealed his connection to the girl and a court ordered that he pay child support, Bourgeois violently abused the girl before brutally killing her in 2002, according to a Justice Department summary of the case. He was convicted in 2004. One of his attorneys said Bourgeois has an intellectual disability and should be able to prove that.
The Justice Department also planned to execute Lisa Montgomery this month, but her execution was delayed until Jan. 12 after her lawyers said they contracted the novel coronavirus while traveling to meet with her and needed more time in the case.
In 2004, Montgomery fatally strangled a woman who was eight months pregnant, cut open her body and removed the baby, according to the Justice Department. The baby survived. Montgomery was convicted by a jury in 2007. Her attorneys have said she has “a profound mental illness.” If her execution is carried out, Montgomery would be the first woman executed by the federal government in nearly 70 years.
Federal officials have two executions scheduled soon after Montgomery’s, and both would take place days before Biden’s Jan. 20 inauguration.
Officials plan on Jan. 14 to execute Cory Johnson, who killed seven people as part of his participation in a drug trafficking conspiracy, according to the Justice Department. He was convicted in 1993 and had been scheduled for execution in May 2006, until a court intervened with an injunction. That injunction, though, was lifted in September.
His attorneys argued that Johnson has an intellectual disability and needs to present evidence of it in court.
The Justice Department plans the next day to execute Dustin John Higgs, who was involved in kidnapping and killing three women with whom he and friends had socialized at his apartment in Laurel, Md., in 1996, according to the Justice Department. At the gathering, according to the Justice Department and news accounts around the time of the killings, one of the women rebuffed an advance by Higgs. He drove the women to a secluded area in a wildlife refuge and ordered a friend to shoot them.
The friend, Willis Mark Haynes, was convicted of murder, but a jury did not recommend that he be executed. Nolan, a lawyer for Higgs, has said it would be unjust to execute Higgs, thus punishing him more harshly than the person who shot the women.