On Thursday, Brandon Bernard was put to death at the federal prison in Terre Haute, Indiana, despite widespread national outrage over his execution. He is one of 10 people put to death by the Trump administration since July, with three more slated to die before Joe Biden is inaugurated president on Jan. 20. Before July, there had not been federal executions in 17 years, but the Department of Justice not only revived them, but insists on carrying them out right up until the Trump administration leaves office — and during a pandemic. HuffPost senior reporters Melissa Jeltsen and Jessica Schulberg have been covering these executions, and spoke with Must Reads about what’s going on.
So we haven’t seen a federal execution since 2003, but there have been ten since July. Why is this happening?
Jeltsen: President Donald Trump has long been a vocal proponent of capital punishment. Who could forget the full-page ads he took out after the arrests of the Central Park Five, which read: BRING BACK THE DEATH PENALTY? But executions at the federal level have been extremely rare in recent decades. After a botched state execution in Oklahoma in 2014, then-President Barack Obama ordered the Justice Department to conduct a review of capital punishment issues. And then ... Trump was elected. Last summer, Attorney General Bill Barr announced that the federal government planned to resume executions. It is worth noting that these executions have all occurred during the pandemic, at a time when states have stopped conducting executions due to the health risks involved.
You mentioned the coronavirus pandemic — how does it make the mechanics of doing these executions difficult?
Jeltsen: First of all, prisons are known as hotbeds for the virus. Masks are optional. Social distancing is impossible. They are often crowded, have poor ventilation and are filled with individuals who are more likely to suffer from chronic health conditions than the general public. It’s important to understand that federal executions involve a lot of people. The Bureau of Prisons “execution team” consists of around 40 individuals who travel to Terre Haute, Indiana, for the event, often crossing state lines. The execution team is not required to quarantine or get tested for COVID-19 before coming to the prison.
Others, like witnesses, family members and the media, also gather for the execution. As one doctor put it in an affidavit, these are superspreader events waiting to happen. After the execution of Orlando Hall on Nov. 19, his spiritual adviser — who stood next to him as he died — tested positive for COVID-19, as did around 20% of the execution team.
Beyond the risks inherent in holding executions during a pandemic, it also endangers death row prisoners’ right to counsel. Take the case of Lisa Montgomery, the only woman on federal death row. After her execution date was set, her lawyers flew to Texas to meet with her and begin preparing her clemency petition. Both of them came down with COVID-19 soon after visiting the prison. Luckily for Montgomery, a court pushed back her execution date to Jan. 12 to give her attorneys more time to recover. However, as we know, some people have symptoms of COVID-19 for months after infection. Will they be healthy enough to prepare a persuasive clemency petition? Unclear.
The execution of Brandon Bernard this past week was unprecedented in several respects — can you tell us how?
Schulberg: Brandon is one of the youngest people to be sentenced to death. He was 18 at the time of his crime, making him barely legally eligible for the punishment. There’s also this idea that the death penalty is reserved for the “worst of the worst” — people who are utterly irredeemable. That’s not true, and Brandon is evidence of that. He was not the ringleader of the crime he was involved in and he was not the person to shoot the victims dead. He expressed immediate remorse about his involvement and has spent his life on death row trying to help other kids stay on track.
Because of this and other information that Brandon’s post-conviction legal team uncovered after his trial, five out of the nine surviving jurors who sentenced Brandon to death, as well as the prosecutor who defended his punishment on appeal, now say he should have been allowed to live.
How many more executions are scheduled between now and Inauguration Day, and is there any activist or legal strategy to try and delay or stop them?
Schulberg: There are three more people scheduled to be executed, including Lisa Montgomery, the only woman on federal death row. Lisa had a torturous childhood and, at the time of her crime, was untreated for her severe mental illness. The last person scheduled to be killed by the Trump administration is Dustin Higgs, a Black man whose Jan. 15 execution date falls on Martin Luther King Jr.’s birthday. It is also five days before the inauguration of Joe Biden, who has pledged to work with Congress to end the federal death penalty and to incentivize states to do the same.
RIght now, two people incarcerated at the federal prison in Terre Haute, Indiana, where the executions take place — who are not on death row — are suing the Justice Department to pause the executions until after the threat of the pandemic has passed. Individuals scheduled for execution will likely fight in court up until their deaths. Lawyers for Corey Johnson, for example, say he has an intellectual disability and has never had a meaningful opportunity to present evidence of that in court. There is also a lot of pressure from death penalty abolitionists on Trump to grant clemency and reduce sentences to life imprisonment — although he has so far resisted doing so, even when high-profile people with ties to his administration have joined the fight.
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