With Federal Executions Looming, the Democrats’ Death Penalty Legacy Is Coming Back to Haunt Us

When Attorney General William Barr announced last week that the Trump administration would restart executions after more than a decade and a half, it was news that capital defense attorneys had been dreading for years. “It was like a gut punch,” said Indiana federal public defender Monica Foster, who got the email just as she was about to visit a client at the federal supermax prison in Florence, Colorado.

As word spread, attorneys and advocates moved past the shock and into action. “We were always prepared for this,” Madeline Cohen, a Boulder-based veteran capital defense lawyer, said on Thursday night, after a long day spent fielding phone calls, including from clients. “We’ve been prepared for this since the beginning of the administration.”

Though they are scattered across the country, the lawyers who represent people on federal death row are part of a close-knit legal community. After the 2016 election — and Donald Trump’s choice of Jeff Sessions as attorney general — many had braced themselves for the U.S. government’s execution machinery to restart. As time passed, the lawyers kept their heads down, focusing on their clients and cautious not to make public waves. But the looming threat was never far from anyone’s mind.

The de facto moratorium on federal executions could be traced to problems with lethal injection that have destabilized the death penalty for years. The last execution at the federal supermax prison in Terre Haute, Indiana, was carried out in 2003, using the prevailing formula at the time: a three-drug protocol starting with the anesthetic sodium thiopental, followed by a paralytic to stop respiration, and culminating in a fatal dose of potassium chloride, to cause cardiac arrest. In 2005, three men on federal death row challenged the method as cruel and unusual in D.C. District Court, providing numerous examples of executions dating back to the 1980s that had caused visible suffering. The lawsuit also raised questions unanswered by the government’s protocol, including about the qualifications and training among those tasked with carrying out executions.

The litigation over lethal injection brought federal executions to a halt. Although the U.S. Supreme Court would uphold the same three-drug protocol in response to a state challenge in 2008, another obstacle soon followed. The sole U.S. manufacturer of sodium thiopental ceased production of the drug, in large part due to pressure by human rights activists. This prompted a desperate search for new sources — and eventually, new drugs. In March 2011, then-Attorney General Eric Holder wrote back to states requesting sodium thiopental from the federal government, explaining that the administration had no reserves and was “facing the same dilemma.”

At the heart of Barr’s announcement on Thursday is a new one-drug protocol using pentobarbital — the same method currently used by Texas, Missouri, and Georgia. The protocol is summarized in two pages that, like similar state documents, provide for the anonymity of executioners while offering no information about the origin of the drug. Although Barr notes that “14 states have used pentobarbital in over 200 executions,” evidence has shown that it is neither reliable nor humane for lethal injection. Dwindling supplies have led states to seek out compounding pharmacies, whose lack of regulation heightens the risk that the drug will be contaminated or ineffective. Just as states have kept these sources under wraps, the Barr memo makes clear that the government intends to ignore longstanding federal law — the Administrative Procedure Act — that is supposed to ensure that such government powers are subject to a public rule-making process. To many lawyers, this lawlessness is one of the most galling parts of last week’s news. “That will really cut off the public’s ability to know what’s happening,” Cohen said.

It is also clear that the first five men scheduled to die were carefully chosen. All were convicted of crimes against children or elderly people — offenses likely to dampen public outrage as their execution dates approach. And none of the condemned men are parties to the lethal injection lawsuit, showing that the government intends to circumvent the ongoing litigation. When it comes to race, Foster points out, the list “was curated in a really cynical way.” Three of the five are white men — the first set to die is a white supremacist — which belies the extent to which federal death row is racially skewed. If executions proceed and continue, she said, “it’s going to be black person after black person after black person.”

With five executions now set to take place in quick succession beginning December 9, Americans are being confronted for the first time in years with a system that is largely abstract and unfamiliar. Many of the assumptions that persist about capital punishment at the state level — including that it is reserved for the “worst of the worst” — are mirrored by perceptions of capital punishment at the federal level. One is the belief that the federal death penalty targets terrorists. In fact, of the 62 people on federal death row, only one, Dzhokhar Tsarnaev, was convicted on terror charges.

Another is the notion that the federal system is somehow superior to what exists in the states, a myth repeated by Hillary Clinton on the campaign trail in 2016. “People think the federal death penalty is the gold standard,” said Foster, who has handled state and federal cases from coast to coast. “That is absurd.”

Cohen recalls her surprise when she first started handling federal cases. As jaded as she had become after decades of capital defense on state cases, she said, “I thought the federal cases would be cleaner. I thought they would involve really good defense lawyers and really careful judging and really smart prosecutors and lots of judicial review. And I was really shocked to find that it is not that way.” In any close examination of federal death penalty cases, “you will find trauma, you will find mental illness, you’ll find procedural disasters, you’ll find junk science, you’ll find all kinds of problematic stuff because the federal death penalty is plagued by the same problems that have caused people to move away from the death penalty in the states.”

Many have noted that the move to restart executions defies national trends showing the death penalty moving toward extinction. Given Trump’s longtime zeal for capital punishment, it is understandable that his critics see the decision as yet another low point in his tenure. But while Trump’s Democratic opponents have condemned his actions — and even responded with new abolition legislation — it is only very recently that the party began to turn away from capital punishment. The 2020 race is the first time in decades that all major Democratic candidates are on record as opposing it.

Particularly notable is Joe Biden, who came out against the death penalty just two days before Barr’s announcement last week. The tough-on-crime senator of the 1980s and ’90s was instrumental in pushing legislation that expanded federal death sentences — the vast majority of people on federal death row today were sentenced under the now-notorious 1994 crime bill. The law “caused a cascade of problems that we’re only now reckoning with,” Cohen said. “And we haven’t reckoned with the death penalty aspects of that set of statutes until now.” If Trump’s opponents are truly sincere about grappling with the federal death penalty, they can start by confronting the Democrats’ role in building it.

A Cascade of Problems

Just over a month before Barr’s announcement, on June 18, a U.S. District Court judge vacated the federal death sentence of a man named Bruce Webster. One of five men convicted in the abduction, rape, and murder of a 16-year-old girl named Lisa Rene in Arlington, Texas, Webster had been on federal death row since 1996. There was evidence from the start that he was less culpable than others involved in the crime — most importantly, IQ tests introduced by his attorneys that suggested he was “mentally retarded.” But prosecutors accused Webster of faking his answers to escape the death penalty. In 1996, a judge in the Northern District of Texas sentenced him to die.

Webster would likely not have ended up on federal death row if not for legislation passed just days before his crime. In September 1994, President Bill Clinton signed the Violent Crime Control and Law Enforcement Act, otherwise known as the 1994 crime bill. The sweeping legislation included the Federal Death Penalty Act, which vastly expanded federal death sentences. Overnight, 60 new offenses became punishable by death. Among them were crimes like “kidnapping resulting in death,” one of several felony murder crimes that made it easier to convict multiple people for one killing. Federal prosecutors initially said they were considering seeking death sentences against all five men. But ultimately, they would target Webster and his co-defendant Orlando Hall — the “first death penalty case filed under the new crime bill in the nation,” as one U.S. attorney announced. The three other defendants would plead guilty in exchange for lesser sentences.

Hall was tried first, in 1995. Prosecutors described him as the mastermind, while defense attorneys said he’d never meant to abduct Lisa Rene and that “things got out of hand, with Bruce Webster in charge.” By contrast, Webster’s attorneys gave no opening statement at trial. Emotions ran high as jurors began deliberating on his fate in June 1996; newspapers reported that Lisa Rene’s sister had “accidentally” seen “gruesome, poster-sized” images of Rene’s face in court earlier that day, screaming and having to be helped off the witness stand. The trial judge denied a motion for a mistrial. After 75 minutes, the jury convicted Webster, later recommending a death sentence.

Six years after Webster was sent to death row, the U.S. Supreme Court issued a landmark ruling, Atkins v. Virginia, which prohibited death sentences for people with intellectual disabilities. Still, his sentence remained intact. When the Bush administration set an execution date for Webster in 2006, a clemency petition circulated by Amnesty International detailed the horrific abuse Webster and his siblings experienced at the hands of their father, a common component of death penalty cases. The treatment included such torture as forcing his children to eat human waste, subjecting them to electrical shocks and burns from a hot iron, and “forced sex between the children.”

Webster ultimately won a temporary reprieve by joining the ongoing federal lethal injection lawsuit. Then, in 2009, his federal habeas attorneys discovered a slew of files that had never been released by the state. Among them were records showing that government psychologists had examined Webster in 1993 — a year before the crime that sent him to die — and concluded that he had an intellectual disability. Other records showed that Webster had taken special education classes, despite testimony claiming the opposite at trial. But perhaps most unsettling were Social Security forms Webster had filled out to apply for disability benefits. In his June order overturning Webster’s death sentence, the judge quoted excerpts from the documents. Webster’s answers were “incomprehensible,” he wrote, and indicative of his “significant limitations” in intellectual and conceptual functioning.

Foster, the Indiana-based attorney, was on Webster’s legal team when the new evidence was found. “When you look at all of these records and when you look at his application for Social Security — oh my God,” she recalled. Like all attorneys who represent people facing execution, the problem of intellectual disability is one she has seen repeatedly across the board. But there is an additional problem at the federal level. Whereas state death penalty convictions are subject to layers of review, first at the state level and then by the federal courts, federal convictions only get the latter. Despite the role these courts are supposed to play in theory — and thanks in part to another sweeping Clinton-era law curtailing federal review — many cases receive little meaningful scrutiny.

Cohen points out that the U.S. Supreme Court has taken virtually no federal death sentences on direct review. And while in theory, clients are entitled to evidentiary hearings in the same District Courts where they were convicted — a chance to raise the kinds of violations often found in capital cases, such as ineffective assistance of counsel — “there are a huge number of guys, including people who are now scheduled for execution, who got no evidentiary hearing.” This was true of Webster until the new evidence got him back into court. If not for that discovery, Webster may well have been on the list of people facing execution.

Federal Intrusion on State Cases

There is no question that the crime for which Webster was convicted — like those of the five men facing execution dates — was horrific and disturbing. But neither was there any compelling reason that it had to be handled by the federal government. A major effect of the 1994 crime bill was to encourage the Department of Justice to take over cases that could have been prosecuted at the state level. When the federal death penalty was resurrected in 1988, its scope was ostensibly limited to “drug kingpins” and trafficking-related crimes. But now practically any murder involving additional felonies is fair game.

As federal prosecutions ramped up in the mid- to late 1990s, evidence of racism became unmistakable. By the time Timothy McVeigh was executed in 2001, federal death row was made up of 14 black men, three Latinos, and two white people. The population has more than tripled since then, more than half people of color. According to the Death Penalty Information Center, of the 62 people on federal death row today, 26 are black, seven are Latino, one is Asian, and one is Native American. In the 5th Circuit, where Webster was convicted, the problem is especially stark: Fifteen of the 20 defendants who have received a federal death sentence there have been people of color.

In a law review article published in 2010, defense attorneys Ben Cohen and Rob Smith revealed one possible explanation for the pronounced racial disparities on federal death row. Just as a small number of counties are responsible today for new death sentences at the state level, federal death sentences quickly became concentrated in a relative handful of federal jurisdictions. A “disproportionate number of federal death sentences are located in districts where the decision to prosecute federally transformed the jury pool from predominantly black to predominantly white,” Cohen and Smith found. This is because most federally prosecuted capital crimes have taken place in locations largely populated by black residents but surrounded by white-dominated suburbs. “As the jury pools get whiter, the opportunity for implicit race bias increases (and minority group defendants suffer the consequences).”

The first to be targeted by this policy was Lezmond Mitchell, whose execution is scheduled for December 11. Mitchell, who is the only Native American on federal death row, was convicted in Arizona in 2003 for murdering a 63-year-old woman, Alyce Slim, and her 9-year-old granddaughter, Tiffany, members of the Navajo Nation. It was a brutal crime; the pair were driving to New Mexico to see a medicine man when they were attacked; their dismembered bodies were later discovered buried on the reservation. As the Farmington Daily Times reported last week, the Navajo Nation made it clear from the start that it opposed the death penalty for Mitchell. In one letter to the U.S. attorney for the District of Arizona, the Navajo Nation’s chief justice urged the federal government to reconsider its punishment. “Capital punishment is a sensitive issue for the Navajo people,” he wrote. “Our laws have never allowed for the death penalty.”

The 9th Circuit Court of Appeals upheld Mitchell’s death sentence in 2015. But in a forceful dissent, the late Judge Stephen Reinhardt decried the decision, recounting how the U.S. government had forced itself onto the case. For one, because the murder alone was not punishable by death under tribal law, seeking the death penalty was “possible only by virtue of the fact that Mitchell and a fellow Navajo, aged 16, stole a car in connection with the murders they committed,” he wrote. The Anti Car Theft Act of 1992 had made carjacking a federal crime — and the 1994 crime bill had made carjacking resulting in death a crime punishable by death. “In the absence of the carjacking, Mitchell would not have been eligible for the death penalty.”

“Equally important,” Reinhardt went on, “none of the people closely connected to the case wanted Mitchell to be subjected to the death penalty: not the victims’ family, not the Navajo Nation — of which the victims and perpetrators were all members and on whose land the crime occurred — and not the United States attorney whose job it was to prosecute Mitchell.” The U.S. attorney at the time, a Bush appointee named Paul Charlton, had declined to seek the death penalty in light of the opposition expressed by the Navajo Nation and the victims’ relatives. But “in the words of the victims’ family,” Reinhardt wrote, “the request that the federal government not seek the death penalty was ultimately ‘ignored and dishonored.’ Attorney General John Ashcroft overruled Charlton and forced a capital prosecution.”

Charlton would be overruled on the death penalty again, this time by Alberto Gonzales, and later lose his job — one of nine prosecutors ultimately purged by the Bush Justice Department in what became known as the U.S. attorneys scandal. (Another fired U.S. attorney, Margaret Chiara of Michigan — a state that abolished the death penalty in 1963 — had also clashed with the Justice Department over the issue.) The role of the death penalty was largely lost in the controversy, in part because Democratic politicians who vocally criticized the U.S. attorney purge had little to say about the Bush Justice Department’s strong-arming prosecutors to bring the death penalty to their states.

The politicization of the Bush Justice Department has long been eclipsed by the larger crisis of Trump’s flagrant lawlessness. But his administration has continued the tradition, seeking death sentences in states like Illinois, which abolished the death penalty years ago over concerns about wrongful convictions. “Since Trump took office, those of us in the capital-defense community have seen a sharp spike in capital prosecutions of state crimes by the federal government,” veteran capital defense attorney Andrea Lyon recently wrote. As men like Mitchell approach their execution dates, it bears remembering that the death penalty has long been weaponized — by presidents, politicians of both parties, and prosecutors who speak for victims even when grieving families ask that it not be used in their name. Barr may claim that “we owe it to the victims and their families” to restart federal executions this winter, but he has already proven that his only real loyalty is to Trump himself.