Editor’s note: Brandon Bernard was executed by lethal injection on Thursday for crimes he committed at age 18. This piece was originally published on December 1.
When five Black and Latino teenagers were wrongfully convicted of the rape of a jogger in New York City’s Central Park in 1989, prominent businessman Donald Trump bought newspaper advertisements calling on New York state to “bring back the death penalty” in the wake of the attack. Little did the country know, Trump’s views on capital punishment then would inform his presidency decades later: In July, the Trump administration reinstated the death penalty at the federal level after a 17-year hiatus.
The return of federal executions demonstrates an unprecedented and grim picture of Trump’s legacy in contrast to previous administrations. The Washington Post’s editorial board described it as a “sickening spree of executions.” To put it in perspective, only three people had been executed by the federal government in the past 50 years. Meanwhile, in less than five months, eight people have already been put to death by Trump’s Justice Department, with five more executions scheduled to happen before Trump leaves office.
“The Trump administration’s policy regarding a death penalty is just historically abhorrent,” said Robert Dunham, executive director of Death Penalty Information Center, a bipartisan organization that does not take a position for or against the death penalty, but rather is critical of the way capital punishment is administered.
If the remaining executions in December are carried out — making a total of 10 for 2020 — it will mark more civilian executions in a single calendar year than any other presidency in the 20th and 21st centuries. “No one has conducted this number of federal civilian executions in this short period of time in American history,” Dunham added.
Of the five upcoming federal executions during the lame-duck period, four of them are Black men, while the fifth will be the first woman to be executed by the federal government in nearly 70 years. These federal executions come in concert with the rallying cry for racial justice and an overhaul of America’s policing and criminal justice systems that has left a disproportionate number of Black people arrested, jailed, convicted, and dead. More than 44 percent of the remaining 54 people on federal death row are Black, according to the Death Penalty Information Center, even though Black people make up only 13 percent of the US population.
“The fact that we’re having a record-high number of federal executions, at the same time that we’re near a record low in state executions, in the middle of a pandemic, shows how much the Trump administration is either out of touch or that it cannot resist gratuitous acts of cruelty,” Dunham said, adding that only seven state executions will occur this year — the lowest since states began carrying out executions in colonial times. “Nobody needs to carry out an execution during a pandemic.”
Just last week, the Justice Department also published a rule that would allow other methods for capital punishment, such as firing squads, lethal gas, and electrocutions; Attorney General Bill Barr is currently racing to finalize that rule.
Trump’s push for additional methods and a number of federal executions will be part of his presidential legacy and highlights a stark divide between the administration’s actions and dwindling support for the death penalty among Americans.
Four Black men are scheduled for federal execution weeks before Trump leaves office
On November 19, Orlando Hall, a Black man sentenced to death for kidnapping, rape, and murder in 1994, became the eighth and latest inmate to be executed by the federal government since it reinstated federal executions this summer. He is also the first in more than a century to be put to death during a lame-duck period. Shortly before Hall was executed by lethal injection, the US Supreme Court had denied his request to stop the execution — with new Justice Amy Coney Barrett joining the majority ruling.
While Hall is the second Black man to be executed out of the eight so far since July, the remaining men scheduled to be put to death are all Black. “In an apparent effort to forestall criticism that the federal executions were racist, the administration selected white prisoners first,” Dunham said; the executions were reinstated as racial justice protests broke out across the country this summer. “What’s striking about that, though, is that it still tells us a lot about whose lives matter because only one of the people executed so far was convicted for killing an African American.”
Brandon Bernard, convicted of kidnapping and murder, is scheduled to be executed by lethal injection on December 10. Bernard, who is also Black, was only 18 years old when he committed crimes that resulted in the deaths of a young white married couple in 1999. But five of the nine surviving jurors who supported the death penalty at the time now believe it is inappropriate. Even Angela Moore, the federal prosecutor who helped put Bernard on death row, wrote an op-ed in the Indianapolis Star making a case for why the federal government should let him live.
“I always took pride in representing the United States as a federal prosecutor, and I think executing Brandon would be a terrible stain on the nation’s honor,” Moore wrote.
During his time in prison, Bernard has been a model prisoner, mentoring at-risk youth. “Having learned so much since 2000 about the maturation of the human brain and having seen Brandon grow into a humble, remorseful adult fully capable of living peacefully in prison, how can we say he is among that tiny group of offenders who must be put to death?” Moore wrote.
Alfred Bourgeois, a Black truck driver in Texas who was convicted of abusing and killing his 2-year-old daughter in 2002, is scheduled for execution the day after Bernard. Bourgeois’s execution was originally scheduled for January 2020 but was halted by a federal judge who blocked the Trump administration’s early moves to bring back the federal death penalty. Bourgeois’s lawyers then argued to suspend his death sentence on the grounds that he’s entitled to an intellectual disability evaluation under the Eighth Amendment.
The next two inmates on death row are scheduled for execution in 2021 just a few days before Biden’s inauguration. Cory Johnson, who was convicted of murdering seven people during a drug trafficking operation in Richmond, Virginia, is scheduled for lethal injection on January 14. Like Bourgeois, Johnson’s lawyers argue that there is overwhelming evidence that Johnson has intellectual disabilities.
On January 15, Dustin Higgs is scheduled to be put to death for a crime committed in 1996. The Justice Department claims that Higgs kidnapped and murdered three women, but the Daily Beast reports that while he was present at the scene of the crime, witnesses confirm that Higgs did not kill anyone. Co-defendant Willis Haynes fired the shots, but the Justice Department argues that Higgs coerced his friend Haynes into committing the crime.
But Haynes, who was sentenced to life in prison, confirmed through a signed affidavit that Higgs did not coerce him, saying, “the prosecution’s theory of our case was bullshit. Dustin didn’t threaten me. I was not scared of him. Dustin didn’t make me do anything that night or ever.”
The other person on the Justice Department’s execution schedule is Lisa Montgomery, the only woman on federal death row and the first woman set to be federally executed in nearly 70 years. In 2004, Montgomery killed a pregnant woman and then attempted to pass off the baby as her own. Montgomery, who Dunham said has severe mental illness due to an abusive past, was initially scheduled for execution by lethal injection on December 8, but it was delayed due to her lawyers contracting Covid-19.
The Justice Department is fast-tracking new rules on the death penalty before Biden’s inauguration
Trump is the first president in 17 years to reinstate federal executions, despite a recent poll showing that a record-low number of Americans consider the death penalty “morally acceptable.” Even across party lines, the death penalty has been a historically contentious issue. Since the US Supreme Court revived capital punishment in 1976, state governments have been doing most executions, though those have declined in the past two decades, too.
In addition to pushing through federal executions over the past five months, the Justice Department published a new rule to the Federal Register on Friday that would allow the use of other methods for capital punishment. The new regulation reintroduces the use of firing squads and electrocutions for federal executions in addition to lethal injections. The new rule is set to go into effect in 30 days instead of the generally allotted 60 days. As it stands for the remaining inmates awaiting execution, only Higgs appears not to have a method of execution stated on the Justice Department’s schedule — the rest are marked for lethal injection.
The Trump administration’s move, among many others, is another thing President-elect Biden — who has signaled at various times that he would end the federal death penalty — will have to face once in office. Biden, a political veteran, has repeatedly addressed criticism during his presidential campaign over the role he played in passing the Violent Crime Control and Law Enforcement Act, also known as the 1994 crime bill, signed by President Bill Clinton. The bill allowed the expansion of crimes eligible for the federal death penalty, which aided the conviction of some of the inmates now awaiting execution. (Hall was only eligible for the death penalty because the crime bill added kidnapping resulting in death to the list of crimes.)
The Trump administration is trying to cut corners and fast-track dozens of rules that range from oil-drilling in the Arctic to immigrant restrictions, as well as the death penalty rule, before Biden takes over. If the rules are finalized, the new administration would have to go through a convoluted process to roll them back. But since Biden has pledged to abolish the death penalty at the federal level and incentivize states to follow the federal government’s example, the new death penalty rule may virtually not be of use in his administration.
“Unlike the environmental regulations or policies making it more difficult to negotiate on trade or world safety, the Biden administration can take as much time as it wants to undo this regulation,” Dunham said. “Undoing it isn’t that difficult. I believe the regulation is intended to make it easier for the Trump administration to carry out the remaining lame-duck executions.”
The bigger question is how Biden’s administration will transform a historically racist criminal justice system while also healing the wounds brought by the Trump administration.
“The Trump administration’s conduct, when it comes to criminal legal issues, has been highly political, and mostly out of step with the direction that most of the United States is heading,” Dunham said. “When push came to shove, it reverted to policies that are more extreme in their cruelty and the arbitrariness of their application than anything else we have seen in modern American history.”
The Trump administration’s push for federal executions, while the country has been preoccupied with the election and the pandemic, is no different.