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Rare Lame Duck Federal Executions Preface About Face by Biden

Dec. 10, 2020, 11:01 AM

The Justice Department is scheduled Thursday to execute the second federal inmate since Election Day, continuing the first lame-duck executions since the 19th century, even as the coronavirus pandemic has infected inmates and prison staff.

Since resuming federal executions in July after a 17-year break, the Trump administration has put eight federal inmates to death, and has shown no signs of slowing down in its waning days.

Brandon Bernard, implicated in two 1999 murders on a Texas military base, is scheduled to die Thursday, and four additional executions are planned before President Donald Trump leaves office in January.

Defense lawyers and death penalty opponents are criticizing what they say is a politically motivated rush to conduct executions before President-elect Joe Biden, now a death penalty opponent, takes office and potentially reverses course.

“We know that the death penalty is not about fairness and justice,” said federal public defender Dale Baich, who represented Keith Nelson, one of the men executed this summer. “It’s all about politics. What is happening now with the federal death penalty proves that point.”

Before Attorney General William Barr resumed executions this summer, the federal government had put to death three inmates in the last half-century. Lame-duck executions haven’t happened since the late 1800s, said Robert Dunham, executive director of the Death Penalty Information Center.

The Justice Department didn’t respond to a request for comment on whether it took Biden’s stance into account when scheduling the latest executions.

Death row inmates’ appeals led to the timing of these latest executions, said William Jay, co-chair of Goodwin’s appellate litigation practice and a former assistant to the U.S. solicitor general.

“I don’t fault the inmates for challenging the death penalty protocol and whatever else they want to challenge,” said Jay, who worked on capital cases at the Justice Department. “But the idea that this is the administration doing something nefarious by scheduling executions in between November and January, that’s directly attributable to the fact that the administration had to litigate these things.”

What happens after Inauguration Day on Jan. 20 is irrelevant, said Kent Scheidegger of the Criminal Justice Legal Foundation, a crime victims’ group.

“Whatever happens in the next administration, its stated intent is no reason whatever for the current one to shirk its constitutional duty to faithfully execute the laws,” Scheidegger said.

According to Biden’s website, the president-elect “will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.” Noting over 160 individuals sentenced to death in the U.S. since 1973 who were later exonerated, his site says, “we cannot ensure we get death penalty cases right every time.”

The stance represents an evolution for Biden, who championed tough-on-crime policies including capital punishment as a senator.

Pandemic Impact

The executions come as the pandemic has spread within the federal prison complex in Terre Haute, Ind., where federal executions are conducted.

Members of the execution team for Orlando Hall, the first inmate put to death during the lame-duck period, tested positive for Covid-19 afterward, the Justice Department disclosed.

As of Dec. 8, 128 inmates and three staff members had active Covid cases at the high security U.S. Penitentiary at Terre Haute, according to a Bureau of Prisons website. An additional 198 inmates and 18 staff at the adjacent medium security federal prison have also tested positive.

The Justice Department said in a Dec. 5 filing that the execution facility is “the equivalent of several city blocks” from both prisons, and that its precautions to prevent the spread of Covid-19 include “walling off the execution team, to the greatest extent possible,” from inmates and staff.

Lawyers for Lisa Montgomery, the only woman on federal death row, sought a delay for her scheduled Dec. 8 execution after they fell ill with the virus after visiting Montgomery in lockup this fall.

A federal judge said Montgomery’s execution couldn’t occur before Dec. 31, in order to give her lawyers more time to work on her clemency effort. It’s now scheduled for Jan. 12, the first of three set for the week before Biden’s Jan. 20 inauguration.

“It’s really terrible to be asked to make the decision about whether to properly represent your client or take care of your own health,” said Ruth Friedman, director of the Federal Capital Habeas Project, who represented the first federal inmate executed this year, Daniel Lewis Lee.

“Were there things we didn’t do? Absolutely,” she said of Lee’s case. “Would they have made a difference? I don’t know because we couldn’t do them. That’s a terrible thing to live with.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at sstern@bloomberglaw.com; Tom P. Taylor at jcrawley@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com

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