In all the death that has surrounded us this year, there has been one group that has had at least partial reprieve: the inmates on America’s 29 death rows.
The number of executions in America has been steadily declining — California, which with more than 700 condemned prisoners has the nation’s largest death row, has not carried out an execution since 2006, and for all practical purposes is the most expensive prison warehouse in the country. It costs three times as much to keep prisoners on death row as in a general prison population, and, nationally, they are three times as likely to have their death sentences overturned on appeal or to die in captivity as to be executed. We are the last Western democracy to retain the death penalty. An estimated four percent of death row prisoners never killed anyone at all, so that probably several dozen innocent persons have been executed since the reinstitution of the death penalty by the U.S. Supreme Court in 1976.
If any group of people might be in line to catch a break, it’s America’s officially condemned. And they did, earlier this year — with COVID-19. To be sure, the coronavirus has been more rampant in America’s prisons than anywhere else besides nursing homes. With death raging everywhere, a tacit moratorium on executions took hold. Between Jan. 5 and March 5 of this year, there were five executions, all in the south where they are still popular. Then, as the virus took hold, executions paused until Walter Barton was executed by the State of Missouri on May 19. Barton was 68 years old. His case had been through five trials marred by suspect evidence and recanted testimony, a prime example of the injustice of the American justice system. He protested his innocence to the end.
The Barton case aroused controversy, but it died down as the moratorium resumed, and there were no further executions for another 50 days. Texas then executed Billy Joe Wardlow in early July, and three sudden spurts followed: three executions in a four-day period in mid-July; two within three days in late August; two more within three days in late September; and one more in mid-November. All these bundled executions came at the behest of a single man, U.S. Attorney-General William Barr, representing the only non-state capital jurisdiction in the country, the federal government.
Federal death penalty jurisdiction has existed particularly to prosecute acts of treason; that is, acts committed against the country as a whole. It may be surprising to learn, however, that it is now applicable to some 60 separate offenses, including espionage, terrorism, drug trafficking and the assassination of federal poultry inspectors. In no other jurisdiction in America is anyone on death row for any offense other than homicide.
Before Barr’s sudden scalp-hunting, federal executions were exceedingly rare, with only three in the last 50 years. Between 1972 and 1988 the federal statute had lapsed entirely, having been declared unconstitutional in 1972 and not reinstated until the last year of the Reagan administration. The country had been none the worse, or less secure, for its absence. Even after the spate of new offenses added to it by the Violent Crime and Control Act of 1994, no federal execution had taken place since 2003.
This did not mean that the new statute was harmless. Dzokhar Tsarnaev, the surviving brother in the Boston Marathon case, was indicted for homicide by the Commonwealth of Massachusetts, but then preempted by federal prosecution that removed the case from the state court. The reason, transparently, was that Massachusetts has no death penalty; its citizens having joined the 21 other states that have renounced it. Tsarnaev was duly convicted and condemned in a show trial whose jury forewoman openly referred to him as a “piece of human garbage.” So much for criminal proceedings, states’ rights and the will of the people.
Barr has not explained his rush to death for the fewer than 60 condemned prisoners in his custody, but Joe Biden has announced plans to abolish the federal death penalty when he assumes office, and, unlike his former boss, Barack Obama, he now appears to look upon capital punishment in general with disfavor. Barr seems determined to kill as many of those under his control as he can manage until his own warrant expires next month.
Is it the worst of the worst that Barr has chosen to execute? His first execution, on July 14, was of Daniel Lewis Lee. Faith leaders from across the country pleaded for his life. So did members of the victim’s family, one of whom said that the execution would be a “pure evil” that would “dirty” her daughter’s name. Even the former trial judge and prosecutor in Lee’s case agreed that his life should be spared. Rob Dunham of the Death Penalty Information Center said that the haste with which Lee’s execution had been carried out, with legal appeals still pending, was “unlike anything in modern death penalty history.”
There are two more federal executions scheduled for this year, which will make 10 in all. One of them is of Lisa Montgomery, the only woman on federal death row, who was a victim of child sexual abuse and sex trafficking and suffers from hallucinations and psychosis among other maladies. The other is Brandon Bernard, who was involved in a double homicide as part of a teenage gang and whose execution, as one of his former prosecutors has written, “would be a terrible stain on the nation’s honor.” A majority of Bernard’s surviving trial jurors agree.
How, then, were those picked by Barr to die chosen? Robert C. Owens, who represents both Montgomery and Bernard, says that, essentially, they were “randomly selected.” And why were they chosen at all? What lies on William Barr’s heart and conscience, if either of them operates, cannot be known. But the reason for these deaths is clear enough. When protests and riots broke out across the country after the killing of George Floyd in May, Donald Trump confronted a pandemic out of control and an economy in freefall. He fell back on the last refuge of the political scoundrel to make his case for re-election, law and order. Police broke up a peaceful protest against Floyd’s death in Washington’s Lafayette Park with the use of regular military troops only narrowly averted. Federal troops were sent into Portland and elsewhere. Trump spent the summer denouncing “anarchist” cities including New York and Chicago that had willfully thrown themselves into the arms of violent revolutionaries, and threatening to occupy them.
As with much of Trump’s bluster, he didn’t dare back it up. But the much more sinister Barr took his cue, and, with the federally condemned prisoners for a Selektion, he has plucked 10 to die. It is indeed a stain on the nation’s honor, and — I would not dispute the characterization of Daniel Lee’s execution by Earlene Peterson — an act of evil. In a larger sense, though, Barr is in the end a mere functionary. We will have well over 300,000 Americans dead from COVID-19 before Donald Trump leaves office, and, as a Columbia University study indicated last spring, the majority of these deaths will be attributable to the ways in which Trump knowingly concealed, mismanaged and finally attempted to exploit the worst pandemic in a century for his own political advantage. That is a larger number than died in World War II. We do not know how many the virus might have killed despite all best efforts. But, whatever else his epitaph may contain, it is safe to say that Donald Trump has been the most murderous president in our history.