Trump’s love affair with the death penalty should have come as no surprise as he has always been a strong supporter and never shied from letting his position be known. In the late 1980s, Trump went so far as to take out a full-page ad in The New York Times calling for the deaths of five men who were later exonerated. The case involved a white woman who was assaulted and raped on April 19, 1989, in Central Park. Five Black and Latino youths were falsely convicted of crime. Trump felt that they should be executed and loudly proclaimed as much to the public. These men that Trump demanded be killed were exonerated in 2002 after a prisoner unconnected to the Central Park Five confessed to the crime.
The state-authorized killing spree under Trump started in July 2020. When it was over, his administration had executed more Americans than all of the states combined during his reign as president. There were seven judicial killings across the five states of Alabama, Georgia, Missouri, Tennessee and Texas, stated an end-of-year report compiled by the Death Penalty Information Center in December 2020. Trump oversaw 13 federal executions in less than a year, which there had only been 37 other federal executions since 1927, according to the Bureau of Prisons.
Five of the federal executions took place after Trump lost the election, making him the first lame-duck president to preside over an execution. Robert Dunham, director of the Death Penalty Information Center, said: “It’s hard to understand why anybody at this stage of a presidency feels compelled to kill this many people. This is a complete historical aberration.”
Six of the 13 prisoners killed under the Trump administration were Black. A Death Penalty Information Center report from September 2020 showed Black Americans are almost 30 times more likely to face the death penalty for the murder of a White victim than the other way around.
Killing Spree — or Simply Justice?
• Lisa Montgomery. On January 13, Lisa Montgomery – the only female prisoner on federal death row — became the eleventh federal prisoner executed under the Trump administration. While her crimes were brutal, there was more to the story that the public did not know.
Montgomery’s attorney was Frederick Duchardt, who has represented four federal clients sentenced to death – more “than any other defense lawyer in America,” according to The Guardian. Duchardt visited his client only three times while she was in jail before the trial commenced. Counsel argued that Montgomery suffered from pseudocyesis, a phantom pregnancy, and insanity – a defense that almost never works in death penalty cases, no matter what the facts.
Kelley Henry, a public defender who worked on Montgomery’s case since 2012, said, “You will not convince a jury to find someone not guilty by reason of insanity in a capital case,” said Henry, who has specialized in capital punishment cases for 20 years. “The jury is just not going to buy it.” After five hours of deliberations the jury rejected that defense and Montgomery’s fate was sealed. She was headed to death row.
There are guidelines set by the American Bar Association that makes clear that an attorney must at a minimum work with a mitigation specialist. That person digs into a person’s background, abuses and other issues to help the jury understand the defendant and their history. Duchardt never worked with such a specialist. When the new legal team took over during the appeal process, they discovered that Montgomery was a victim of sex trafficking and had been subjected to abuse, rape and torture. They also discovered that Montgomery had been beaten so badly that she had a traumatic brain injury.
She had bipolar disorder, temporal lobe epilepsy, complex post-traumatic stress disorder, dissociative disorder, psychosis, and traumatic brain injury — all information that could have mitigated her sentence had the jury in her 2007 trial heard this evidence. This all went unheard as a result of counsel’s failure to properly investigate the case.
Montgomery’s lawyers tried to save her for years and argued that mental illness made it impossible for her to comprehend her sentencing. A plea for clemency to President Trump went unanswered. Montgomery had one last wish: that her spiritual adviser be permitted to come in the room during the execution and sing the song Jesus Loves Me. That request was denied.
Henry, Montgomery’s lawyer said, “She touched me…She loved Little House on the Prairie. She was smart. She was somebody who never would have been there, but for her mental illness.”
• Corey Johnson, 52, was strapped to the death bed January 14, after Montgomery took her last breath. His lawyers attempted to stop the execution based on the fact that the lethal injection of pentobarbital would cause him excruciating pain due to lung damage suffered from coronavirus just prior to his execution. “The government must stop trying to execute Corey Johnson while he is still recovering from the COVID-19 infection he contracted as a result of the government’s own irresponsibility in carrying out executions during the pandemic,” Donald Salzman, an attorney for Johnson, said in a statement.
The legal battle to save his life was intense, but the Supreme Court rejected his arguments that he was intellectually disabled, and the COVID-19 argument failed as well.
From his death bed, Johnson apologized to the families of his victims – seven people killed when he was involved in the drug trade. In his own words, Johnson said, “I would have said I was sorry before, but I didn’t know how.”
“I hope you will find peace,” he said, according to a statement released by his lawyers. “To my family, I have always loved you, and your love has made me real. On the streets, I was looking for shortcuts, I had some good role models, I was side tracking, I was blind and stupid. I am not the same man that I was.”
Johnson’s attorneys said that he was severely mentally disabled. “We loved Corey Johnson, and we knew him as a gentle soul who never broke a rule in prison and kept trying, despite his limitations, to pass the GED,” he said. “His family and loved ones are in our hearts. We wish also to say that the fact Corey Johnson should never have been executed cannot diminish the pain and loss experienced by the families of the victims in this case. We wish them peace and healing.”
The legal team said Johnson had an IQ of 69 – which is lower than the standard the Supreme Court set as a guide for states weighing whether an execution falls under the ban on cruel and unusual punishment. None of this mattered under the Trump administration.
• Dustin Higgins was the last man executed under Trump in the death chamber at Federal Penitentiary Terre Haute in Indiana. He maintained his innocence up until the moment he was executed. Higgins wrote in the past, “I wonder if it’s that I’m not yelling loud enough, or is it that the blatant miscarriage of justice of me being killed for a crime I’m certainly innocent of really doesn’t matter.” Those claims were supported by the 2012 affidavit written by co-defendant Willis Haynes, who claimed he was the trigger man. Haynes is currently serving a life sentence for the crimes for which Higgins was executed.
“Dustin didn’t threaten me. I was not scared of him. Dustin didn’t make me do anything that night or ever.” Haynes wrote these words in an affidavit in support of clemency for Higgins under the Obama administration.
Supreme Court Justice Sonia Sotomayor voiced her opinion about Trump’s ramped-up executions. In a dissenting opinion in the Higgins case, she wrote, “This is not justice.” Sotomayor in her statement argued the government should have proceeded with “some measure of restraint” instead of moving with an “unprecedented rush” amid questions concerning the Justice Department’s drug protocol, the Federal Death Penalty Act and other disputes.
The one thing that is clear is that Trump’s Department of Justice headed by Barr was on the same path as that of the law-and-order president – to execute as many prisoners as it could before the two men left the White House. Justice Sotomayor said as much.
What Will the New Administration do?
Biden said in a 1992 speech that criminal justice legislation he was pushing was so strict that “we do everything but hang people for jaywalking.” Two years later, his signature crime bill made dozens of additional offenses punishable by death. Biden’s support for the death penalty was consistent throughout his 30-plus years in the Senate.
However, he claimed on the campaign trial to have turned over a new leaf and is the first sitting president to openly call for the abolition of the death penalty. He has discussed the possibility of instructing the Department of Justice to halt scheduled executions. If President Biden were to make this call, he would end the machine ramped up by Trump. He would go significantly further than President Obama, who placed an informal moratorium on carrying out federal executions.
With all of the issues surrounding the legal killing of people by the federal government, now would be the right time for Biden to take actions that meet his words.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login