David M. Perry a senior academic advisor in the History Department at the University of Minnesota wrote in the USA Today:
The American people have spoken and elected Joe Biden to be our next president. In a civilized country, the process of smoothly handing over power from one side to the other would consist, at the bare minimum, of precluding irrevocable decisions by the outgoing administration. Attorney General William Barr’s reaction: Kill as many people as he can as quickly as possible.
The Trump administration’s final spasms of state murder make one thing clear: Biden must abolish the federal death penalty. Every state should follow suit. No longer should lives be subject to the political whims of prosecutors, judges and rogue outgoing presidents.
The current spate of executions at the federal level is unprecedented. When Orlando Hall was executed Nov. 20, it was the first federal execution during a transition period between one president and the next since 1889. Trump and Barr are building a bridge back to the 19th century. Not only is their policy regressive, but the difficulty of obtaining the drugs for lethal injections inspired Barr to issue a new rule permitting the use of firing squads and electrocutions as means of execution. On the other hand, as Liliana Segura noted in The Intercept, Hall was one of the first people convicted under the expansion of federal death row under the 1994 crime bill, which Biden championed. No one’s hands are clean.
Robert Dunham at the Death Penalty Information Center told me that this year will have “the fewest number of new death sentences” since 1972, and the lowest number of executions since 1983 (in part due to COVID, with even ardent executioners realizing that there’s no pressing need to kill more people during a pandemic). Twenty-two states have abolished capital punishment. Even where it’s legal, Dunham said, anti-death-penalty prosecutors are being elected in counties with “histories of heavy death penalty use.” Support is falling around the country, but that’s no consolation to the people being executed.
The problem, of course, is that most of the people on death row are inarguably guilty (though not all, and executing even one innocent person should outrage everyone), often of horrific crimes. Thus it can be difficult to argue for mercy. But the death penalty has never been applied to the worst of the worst; it’s just applied to the people who happen to have the worst lawyers. This means that they’re poor, disproportionately non-white, and according to my own research, nearly universally disabled. They are very often victims of horrendous trauma. Bias will always be a factor in death penalty sentencing; that’s not justice.
What’s more, the Supreme Court has repeatedly found, in ever-increasing specificity, that people with intellectual disabilities are exempt from execution. Three of the individuals slated for execution, including Lisa Montgomery (whose Dec. 8 execution date was stayed, for now, until Jan. 12), the sole woman targeted by the Trump administration, have strong claims of intellectual disability, but have never been able to litigate their veracity.
A fourth, Dustin Higgs, is not claiming intellectual disability. But in 1996, as an 18-year-old, he was involved in a triple murder, but did not kill anyone. The killer was convicted and sentenced to life in prison. Higgs’ lawyer told me through a statement, “It would be arbitrary and inequitable to punish Mr. Higgs more severely than the person who committed the murders.” Higgs has reportedly been a model prisoner and is a very different man 24 years later. Who is served by executing this man in a rush before Biden becomes president? Not the victims. Not justice. Only a false sense of vengeance.
And yet, despite all the mitigating factors, and despite having lost an election, Barr is ready to break all precedent and keep the executions going during this lame duck period. At this moment, alas, I genuinely don’t know whether we can save these lives, though we must try through both the courts and public pressure.
But after this, regardless, we’re going to need to tyrant-proof America in so many ways, so the next rogue regime can’t ignore norms when it suits them. When it comes to the death penalty, Biden should immediately commute all federal death sentences to life in prison, then rally the nation to finally commit to abolishing the death penalty for once and for all.
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