Donald Trump is the self-described “law-and-order” president. As the caging of immigrants on the border, and the mobilization of federal troops to shut down Black Lives Matter protests have shown in no uncertain terms, his Administration has sharpened the tools of racism and repression at its disposal. Throughout the current uprising against police violence, his response has been ramped-up policing while branding protesters as “looters” and “terrorists.” The federal death penalty is another important weapon in Trump’s arsenal.
The death penalty is currently on the books in 28 states, as well as in the federal and military prison systems. By far, those on death row are disproportionately people of color and poor. Their cases exemplify the worst of a judicial system that railroads defendants in capital trials with under-resourced attorneys, coerced and fabricated testimony, withholding of exonerating evidence, racist jury selection, and more. Revelations of such outrageous practices have led to 170 exonerations of innocent people on death row alone. There’s now wide opposition to capital punishment and mass incarceration. Public support has been falling for years, driven not just by evidence of innocence but by struggles of activists against the racism and barbarism of the prison system.
After a nearly two-decade moratorium, the U.S. government’s use of the death penalty is back with a vengeance. U.S. Attorney General William Barr had previously announced the resumption of federal executions in July, 2019. However, executions were stayed last November with a series of legal challenges arguing that the government’s single-drug lethal pentobarbital injection protocol had not been sufficiently reviewed and was unconstitutional. In fact, assertions that lethal injection amounts to torture have fueled challenges in recent years to the use of execution drugs, forcing a number of states to suspend state killing, including California, the largest death row in the country.
Until this past month, only three executions had been carried out at the federal level: Timothy McVeigh was executed in June, 2001, for his role in the Oklahoma City bombing in 1995; Juan Raul Garza was killed one week later; and Gulf War vet Louis Jones, who suffered from PTSD and was exposed to nerve gas in Iraq, was executed in March, 2003. All were carried out under President George W. Bush and his Attorney General John Ashcroft, the “War on Terror” architect behind civil rights rollback and the gulag at Guantanamo Bay. Historically capital punishment has been wielded as a political tool, one designed to stoke racism and repression.
Barr’s 2019 announcement prompted fierce opposition, including—in at least one case—from the family members of the murder victim. Following months-long challenges in 2019 and into 2020, on July 14 the courts swept away the remaining hurdles to federal executions and gave the green light to proceed. In a brutal show of government strength, three executions were carried out within a matter of days in the federal death chamber in Terre Haute, Indiana: Daniel Lewis Lee, Wesley Ira Purkey and Dustin Lee Honken. With these killings, the deep contradictions and cruelty of the death penalty under Trump were laid bare.
Lee was kept strapped to a gurney for eight hours while last-minute requests for a stay were considered; his attorneys had motions pending when the execution was carried out, and they learned via Twitter that their client had been killed. “The federal government just executed a prisoner in violation of the law,” said Death Penalty Information Center Executive Director Robert Dunham. “And if their actions could be construed as complying with federal regulations, the regulations were unconstitutional.” Purkey’s lawyers were fighting his execution on medical grounds as their client suffered from Alzheimer’s, but the execution went ahead despite the possible basis for a new hearing. Recently released autopsy findings show that Purkey experienced pain at the time of his death “akin to drowning.”
Equally horrific was the government’s insistence on pushing ahead despite the severe constraints of the pandemic, at a time when those on death row urgently needed direct access to their lawyers. Lee’s attorney, Ruth Friedman, issued a statement saying:
It is shameful that the government saw fit to carry out this execution during a pandemic. It is shameful that the government saw fit to carry out this execution when counsel for Danny Lee could not be present with him, and when the judges in his case and even the family of his victims urged against it. And it is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping. We hope that upon awakening, the country will be as outraged as we are.
Capital punishment has long been described by abolitionists as “legal lynching” because of the racist way that death sentences are applied. Federal death row is no exception: there are 62 people on the row and 56% are people of color. As The Intercept’s Liliana Segura describes in an interview with Indiana federal public defender Monica Foster on July’s executions:
When it comes to race, [Foster] points out, the list “was curated in a really cynical way.” [T]he 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.”
And although Barr’s office announced restarting executions the year before, their determination to carry out these killings in the midst of the most important social movement in a generation, one demanding abolition and an end to police brutality, only underscores the message about the government’s capacity for state violence.
Building the death machine
The explosion of mass incarceration in the U.S. has been decades in the making and a bipartisan project from its inception. Introduced under President Richard Nixon, tough-on-crime laws took off under President Ronald Reagan. The 1970s launched the so-called “war on drugs” which rose to frightening heights over the next few decades. In the wake of the civil rights movement, the death penalty had been ruled unconstitutional in 1972 with the Furman v. Georgia Supreme Court decision. Yet a mere four years later, a new case before the Court allowed capital punishment back on the books. State by state, death penalty statutes were brought back, including at the federal level in 1988.
“Tough-on-crime” policies escalated dramatically under President Bill Clinton with the passage of the 1994 Omnibus Crime Bill and gained wide support from both parties. The provisions in these Clinton bills were vicious, including life imprisonment for a third felony offense (“three strikes and you’re out”) and a dramatic expansion of federal crimes punishable by death, which rose from two to 60 and included making drug-trafficking death-eligible (although the Supreme Court later ruled that the death penalty is unconstitutional for crimes where no deaths took place). Just two years later, Clinton’s Antiterrorism and Effective Death Penalty Act restricted habeas corpus death row appeals to just one year post-conviction. In 1992, then-Governor Clinton signaled his enthusiasm for the death penalty from the campaign trail, returning home to Arkansas to oversee the execution of mentally-disabled Ricky Ray Rector. In The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), Michelle Alexander draws out the painful conclusions of this era and what she calls its “collateral consequences”: harsh sentencing, a prison-building spree, large infusions of funding for law enforcement, and a large-scale rollback of the rights of formerly-incarcerated people, all creating what she terms a system of social control. Since 1980, the federal prison population has risen by more than 700 percent, and federal prison spending has risen by nearly 600 percent, more than doubling during Clinton’s administration alone. Executions reached an all-time high on his watch, with a total of 98 carried out nationally in 1998. By comparison, 22 death sentences were carried out in 2019. A total of 1,522 men and women have been executed in the U.S. since 1977, and 2,603 people are currently on death row.
As prison abolitionists often point out, Democratic presidential nominee Joe Biden played an outsized role in the national turn towards “law-and-order” policies, not only as a major booster of Clinton’s crime bill, but also over the previous decades as an ally of conservatives, laying the basis for the Clinton administration’s major strategic turn. As Branko Marcetic’s book Yesterday’s Man: The Case Against Joe Biden describes:
Congress’s most-storied former segregationists so easily made the transition into tough-on-crime-and-drugs warriors after the 1960s. Through the late 1970s to the 1990s, those racist lawmakers would become some of Biden’s most reliable allies in erecting today’s US carceral state, one whose prison population continues to dwarf the rest of the world’s.
Today’s massive death penalty, prison, and policing apparatus can be laid at the feet of Biden, Clinton, and the bi-partisan efforts that built a racist system to new heights.
Trump’s law and order agenda
Donald Trump, as the self-declared “law-and-order candidate,” laid out his agenda at the 2016 Republican National Convention:
Our convention occurs at a moment of crisis for our nation. The attacks on our police, and the terrorism in our cities, threaten our very way of life. Any politician who does not grasp this danger is not fit to lead our country….An attack on law enforcement is an attack on all Americans.
This bloodthirsty speech notwithstanding, crime rates have steadily declined since the early 1990s. But despite Trump’s aim to shrink “big government”—social services, healthcare, education, and environmental regulation—his administration has enthusiastically embraced the repressive arm of the state, from the death penalty and the border wall to combatting “violence in the streets.” The summer of 2020 was not the first time Trump warned of sending the National Guard to urban areas: on the heels of his inauguration in 2017 he threatened to “send in the Feds” if “Chicago doesn’t fix the horrible ‘carnage’ going on,” and on the campaign trail described the city as a “war-torn country.”
Trump’s crime hysteria stretches back decades. In 1989, he took out full-page ads in the major New York dailies calling for the return of the death penalty—not legal in New York State at the time—for the assailants in what became known as the Central Park jogger case. “How can our great society tolerate the continued brutalization of its citizens by crazed misfits?” his statement screamed. “Criminals must be told that their CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS!” Campaigning in 2016, Trump expressed outrage that the five teenagers of color—once called the Central Park 5 and now known as the Exonerated 5—had had their convictions overturned and reiterated his belief in their guilt. Yusef Salaam, one of the 5 and a past Board Member of the Campaign to End the Death Penalty, recalled the threat of racist vigilante violence:
My mother used to always say that she was from the Jim Crow South, but here I was experiencing Jim Crowism in the North. They were trying to make us modern Emmett Tills, based on Donald Trump’s ad. Somebody would have probably taken it upon themselves to lynch us. Even more so now, if you look at the crowds that Donald Trump gets in front of. Here you have a person who said, “I can go on Fifth Avenue right now and shoot someone, and I won’t lose any voters.”
Confronted with a massive uprising against police murder and racism following the murder of George Floyd, Trump made good on his threat to deploy Federal troops to cities against “protesters, anarchists, agitators, looters or lowlifes.” The National Guard was mobilized to Portland, Oregon, ostensibly in response to damage to federal property. Local activist Camille Avian puts the deployment in context, describing how:
[A]nti-insurgency tactics are what we Portlanders are being terrorized with, much as the people of Palestine, Iraq, Afghanistan, Pakistan, and Yemen have been experiencing while occupied by the blood-and-oil-thirsty U.S. war machine …. The black site kidnappings we’re facing here are not unlike the spiriting away of Muslim, Arab, and Southeast Asian people to Guantanamo or the disappearing of Black people in the prison industrial complex. And it resembles the family separations experienced by immigrants.
Re-launching the federal death penalty is a piece of this expansion of state power, significantly in a period of social crisis and political polarization. Lancino Hamilton, a writer incarcerated in Michigan, captures the dynamic well, commenting that:
[T]he Federal Bureau of Prisons bringing the death penalty back is not an isolated phenomenon. It is one of many interlocking actions intended to protect the poisonous economic and political systems that are undermining democracy. The return of the death penalty is yet another signal that the state will not hesitate to use extreme force to defend policies pursued over the past two years which seem deliberately designed to remove basic protections from the poorest, punish the most vulnerable, and make basic human rights a privilege to be earned….The death penalty is not just inhumane and a violation of human rights; it also threatens and undermines democracy, and is a portent of more repression to come.
Innocent on death row: the case of Billie Allen
Currently incarcerated on federal death row, Billie Allen’s case exemplifies the injustices that run through the application of the death penalty: its disproportionate use against African Americans and people of color, its inadequate legal representation and rush to convict by cops and prosecutors. Wrongfully convicted of the 1997 armed robbery and murder of a security guard in St. Louis, Missouri, Billie watched as exonerating evidence was withheld by his trial attorney.
Significantly, DNA testing that excluded Billie from the crime scene was never introduced, nor was alibi witness testimony and other physical evidence that would have backed up his innocence. His conviction also rested on false testimony by the police, several of whom have since been discredited for lying on the stand.
Billie described the details in an interview with Tempest:
I am innocent and I tell people to look at my proof! I have DNA evidence that exonerates me: gasoline results that exonerate me, witnesses who told the local police and the FBI that they saw someone other than me fleeing the crime scene, and I have an alibi for the time and day that the crime took place! What should shock people is that none of this evidence was used in my defense, and yet, my trial judge claims I got a fair trial. How is that fair when I had no defense? My innocence is built around evidence that was in the government’s files!
Billie recounted how one of the most egregious abuses in his trial was the federal prosecutors never declaring their intent to seek the death penalty to a jury, a requirement in the courts:
I, along with several other people, have never been indicted for a capital offense, meaning that we technically shouldn’t be on death row because under the law, the government has to go to the jury and submit statutory aggravating factors. But the government in my case and several other cases has conceded that they didn’t do that. This is an issue that I’m raising in the 7th Circuit District Court, and this claim helps some of those on federal death row: Dustin Higgs, Julius Roberson, Christopher Vialva (who is set for execution [on September 24]), Brandon Bernard, and several others.
Because of the legal hurdles created by the Clinton-era legislation, efforts of people like Billie, who are fighting to prove their innocence, are an uphill battle. And as he says, he is far from alone. For one, he says:
You have Sherman Fields, who too is arguing his innocence in the courts. See, most people don’t know about the issues that the courts won’t hear, and the issues that the courts try to ignore, because they don’t want to admit they made so many mistakes. But shedding light on these issues and cases will make people start watching the courts more.
And as death penalty abolitionists argue, it’s not only about the innocent, but rather about ending a cruel system that refuses to recognize redemption, that human beings are not reducible to the worst act that they may have committed. Christopher Vialva’s case—whose execution date is only a month away—comes to mind: “I want to show that he is a good person,” said Billie in the interview. “He really is. I think that people want to think the worst of us. But there are people here who have grown so much, and would make society proud for all the things they are trying to do.”
Stop the executions
Activists have their work cut out for them in stopping Trump’s execution machine. Proceeding at a furious pace, the federal government has scheduled four executions over the next month alone: Lezmond Mitchell (August 26), Keith Dwayne Nelson (August 28), William LeCroy (September 22) and Christopher Vialva (September 24). On August 19, Lezmond Mitchell, the only Native American on federal death row, filed a request for an emergency stay due to racial bias in the jury selection. Mitchell is Navajo (Diné) and was convicted in 2001 for the murder of two other Navajo citizens on tribal land. In fact, the Federal Death Penalty Act—part of Clinton’s Crime Bill—forbids the imposition of the death penalty for crimes committed by and against Native Americans, unless the tribe consents. In Mitchell’s case, the tribe did not agree, but the government made an end-run around the law by adding on a charge of carjacking to murder, making him death-eligible.
The Navajo Nation is opposed to the death penalty and views this death sentence as a violation of their rights. “Mr. Mitchell’s case offends tribal sovereignty,” wrote the Navajo Nation Council in a New York Times Op-Ed, calling on Trump to commute the sentence. “After his arrest, the government abused the tribal court system in order to deny Mr. Mitchell his federal due process rights. Mr. Mitchell was held in a tribal jail for 25 days, without access to a lawyer, while the F.B.I. continually interrogated him.” From his “war on terror” platform, Attorney General Ashcroft was determined to secure a death sentence, over the objections of the tribe, the victim’s family, and even the local federal prosecutor.
Mitchell was barely twenty years old at the time of his conviction. Christopher Vialva likewise was only nineteen years old and Keith Dwayne Nelson only twenty-four. Up until as recently as 2005, the United States was one of only a handful of nations that executed those convicted of crimes that took place when they were juveniles. These glaring injustices, and the fact that young people today can still be locked away for a lifetime, emphasize for so many how urgently abolition—of the death penalty and the prison system as a whole—is needed. In the immediate term, organizations like Death Penalty Action are mobilizing online, on the steps of the Department of Justice, and in Terre Haute to stop the executions over the next few weeks. Trump is determined to push ahead with his execution machine at all costs, and our actions matter.
We have stopped the death penalty before. Since the execution high of the 1990s, the number has dropped significantly. Innocent people have walked free from death row, and the number of states with capital punishment on the books is close to half of what it was just a few decades ago. These victories can only be attributable to the long struggles of family members fighting for loved ones, and of the activists and lawyers who stood alongside them, who took to the streets and demanded that the world pay attention to the racism and injustices that put too many behind bars. There have been painful losses along the way, such as the murder of Nobel Peace Prize nominee Stanley Tookie Williams in California’s death chamber in 2005 or the execution of Georgia death row prisoner Troy Davis in 2011, and far too many others.
But along the way, calls to end the death penalty have gained attention and been embraced by the broader Left and movements for racial justice. Troy Davis’ execution intersected with the birth of Occupy Wall Street and played an important role in the radicalization within the Occupy movement. Today Trump is determined to speed up executions, but he has a massive anti-racist uprising to contend with, one led by abolitionist organizers who have been struggling for years against prisons and policing and making clear the connections between police executions in the streets and those behind bars. Visions of an abolitionist future such as the one lifted up by the Mobilization for Black Lives naturally embrace calls to end the death penalty.
In this moment of deep crisis, the urgency of overturning the death penalty couldn’t be starker. As Billie Allen says:
The death penalty is a reflection of the worst part of who we are. I feel that restarting executions is all politics. With everything that’s going on out there, it’s nothing but politics. People can’t even get funding for food, shelter, schools, the mail service, and other essential things. Yet they have money to kill people! How does that make any sense?
These are bipartisan priorities so we desperately need to strengthen the opposition outside the electoral system. Joe Biden and Kamala Harris will no doubt try to distance themselves from their law and order pasts. “I would like to be running and have someone ‘use the crime bill’ against me,” Biden once bragged. Winning abolition needs to be more than proving him wrong: it will take building up our movement forces till we’ve freed them all.
Thanks to Mike Stark for his input.
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Lee Wengraf is a long-time activist based in New York City. She is a former board member of the national Campaign to End the Death Penalty. Follow her at @lenaweinstein.