January 26, 2021

Despite Lame-Duck Status, Federal Government Carries Out Three Executions in December

Brandon Bernard was one of 13 federal death row prisoners executed by the Trump administration before January 20, 2021.

Brandon Bernard was one of 13 federal death row prisoners executed by the Trump administration before January 20, 2021.

United States Penitentiary Terre Haute

[Note: This article was authored in December 2020. Prior to publication, the federal government carried out another three executions in January 2021. Look for further updates on these federal executions and their potential lasting impact on federal law and policy in future editions of Project Press and on the Project’s blog.] 

Last year marked a sea change in the administration of the federal death penalty. Before 2020, the federal government had only executed three prisoners since the punishment was reinstated on the federal level in 1988. But between July and December 2020, the federal government executed an unprecedented ten individuals. And, before President Biden took office on January 20, 2021, the administration carried out an additional three executions.

After carrying out five executions between July and October 2020, the DOJ continued to set executions in the fall, announcing on September 30, 2020, that Orlando Hall would be executed 50 days later, on November 19. The DOJ then announced on October 16 the planned executions of Lisa Montgomery on December 8, and of Brandon Bernard on December 10. On November 20, the DOJ further announced it had reset the execution of Alfred Bourgeois for 21 days later, on December 11. Mr. Bourgeois had been one of the prisoners included in the DOJ’s initial July 2019 announcement resuming federal executions  but received a stay to allow for further proceedings on his pending intellectual disability claim. In its November 20 announcement, the DOJ also included two prisoners to be executed in 2021 prior to President Trump leaving office: Cory Johnson (January 14) and Dustin Higgs (January 15).

Despite the election of a new federal administration in November, the government carried out these executions as scheduled throughout the fall and winter. In a November 12 letter to President Trump, American Bar Association President Patricia Lee Refo noted the federal government’s outlier status in continuing to carry out executions during the COVID-19 pandemic and expressed the Association’s concern over the three scheduled executions. The letter urged President Trump to grant reprieves to the three prisoners. In a letter to Attorney General William Barr issued the following day, U.S. legislators Richard J. Durbin, Cory A. Booker, Patrick Leahy, and Ayanna Pressley highlighted President-elect Biden’s plan to eliminate the federal death penalty in urging the suspension of all scheduled federal executions.

Litigation in the Federal Bureau of Prisons’ Lethal Injection Protocol Cases, with lead case Roane v. Barr, continued in the fall as well. Following another round of litigation in the U.S. District Court for the District of Columbia, the U.S. Court of Appeals for the D.C. Circuit again heard oral arguments in the matter, as it had in January 2020. On November 16, 2020, pro bono counsel from Skadden and Munger, Tolles & Olson argued to a three-judge panel that the Government had violated the Food, Drug, and Cosmetic Act (FDCA) in failing to acquire prescriptions for the lethal injection drugs. The plaintiffs further argued that the FDCA violation gave rise to a cause of action under the Administrative Procedure Act (APA). In a November 18 per curiam opinion, all three judges agreed that “the district court should have ordered the 2019 Protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the FDCA.” However, over Judge Pillard’s dissent, the court refused to enjoin the executions under the APA, finding that the plaintiffs had not shown that use of an unprescribed drug would cause “irreparable harm.” The court also remanded the Eighth Amendment claim for further consideration of whether the method of execution would cause needless suffering, finding that the lower court had made “critical legal errors” in dismissing the claim at the summary judgment phase. The same day, Mr. Hall and Mr. Bernard filed a joint emergency stay motion in the U.S. Supreme Court, noting their intent to file a certiorari petition asking for review of the lower courts’ “irreparable harm” analysis. The Court denied the motion the following day.

Mr. Hall also filed a request for a stay in D.C. District Court on November 19, asking the court to set aside the 2019 execution protocol and stay his execution based upon the finding that the protocol violated the FDCA. The court granted both requests, noting that the circuit court opinion the day before had “fundamentally altered this court’s prior fact-findings.” However, over dissenting votes from Justices Sotomayor, Breyer, and Kagan, the U.S. Supreme Court granted the Government’s motion to vacate the stay a few hours later. Mr. Hall was executed later that evening.

As in the cases of the seven prisoners executed earlier in the year, individual litigation in these cases worked its way across multiple jurisdictions following the setting of the dates.

Orlando Hall: executed November 19, 2020

Several months prior to the setting of Mr. Hall’s execution date, the Inter-American Commission on Human Rights (IACHR) issued a report with its findings in Mr. Hall’s case. Mr. Hall had submitted a petition over a decade prior, alleging that the United States had violated multiple international human rights obligations, including his right to a fair trial, right to due process, and right to be free from arbitrary detention. The IACHR agreed, ultimately recommending that Mr. Hall’s death sentence be commuted.

On October 30, in a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit declined to authorize Mr. Hall to submit a successive habeas petition. The petition challenged Mr. Hall’s non-capital firearms conviction. The U.S. District Court for the Southern District of Indiana then held on November 14 that, under federal law, it was procedurally unable to consider the merits of Mr. Hall’s challenge to his firearms conviction. The U.S. Court of Appeals for the Seventh Circuit affirmed on November 18.

On November 16, the U.S. District Court for the District of Columbia denied Mr. Hall a hearing or preliminary injunction on his allegations of statutory and constitutional violations stemming from the 50-day notice of his execution and inability to meaningfully access the clemency process during the pandemic. On November 17, the U.S. District Court for the Southern District of Indiana denied Mr. Hall’s motion to stay his execution based on the racial discrimination that had infected the sentence. The motion described the all-white jury that had sentenced Mr. Hall, a Black man, to die, as well as statistics pointing to the race-based nature of capital sentencing: federal capital defendants in Texas are 16 times more likely to be sentenced to death if they are Black. The Seventh Circuit affirmed the denial on November 19, and the same day, the Supreme Court denied the certiorari petitions filed for both claims.

With Mr. Hall’s execution, the federal government has executed more prisoners in 2020 than all states combined. Following the World Health Organization’s announcement characterizing COVID-19 as a global pandemic on March 11, the majority of scheduled state-level executions were postponed or stayed, with jurisdictions often citing the pandemic as the reason. The federal government, however, continued to schedule and carry out executions.

Brandon Bernard: executed December 10, 2020

Mr. Bernard was a co-defendant of Christopher Vialva, whom the federal government had executed weeks prior on September 24. On November 10, Mr. Bernard submitted a clemency petition to President Trump. The petition noted Mr. Bernard’s young age at the time of the crime, —at 18 years old, Mr. Bernard was at the minimum age of eligibility for capital punishment—the ineffective assistance of his trial counsel, who failed to challenge the junk science evidence that Mr. Bernard would be a future danger, and his lack of culpability compared to his co-defendants. Several of the jurors that sentenced Mr. Bernard to death provided affidavits supporting his plea for mercy. A former Bureau of Prisons warden noted his support for clemency as well in light of Mr. Bernard's record of good conduct. Separately, the Western District of Texas prosecutor that had defended Mr. Bernard’s death sentence on appeal also expressed opposition to his execution and urged “a court or the president to step in,” in an op-ed published November 18 in the Indianapolis Star. The prosecutor emphasized the way Mr. Bernard’s young age would have influenced his decision-making abilities at the time of the crime, as illuminated by advancements in brain science in the intervening decades, while at the same time, as a Black teenager, his young age would not have lessened his culpability in the eyes of society.

On November 24, Mr. Bernard filed a habeas petition and stay motion in the Southern District of Indiana, challenging his conviction based on the Government’s failure to turn over evidence that could have made a difference in the jury’s decision to sentence Mr. Bernard to death and contradicted the Government’s penalty-phase case. At the time of Mr. Bernard’s trial, a law enforcement expert had provided a written opinion for the Government detailing Mr. Bernard’s position at the “very bottom” of the hierarchically-structured gang to which he and his co-defendants allegedly belonged. The Government did not turn over this report to the defense, instead painting Mr. Bernard to the jury as having gang authority equal to his co-defendants and being equally culpable for the capital crime. On December 8, the court declined to stay the case, a decision affirmed two days later by the Seventh Circuit, where a group of 23 current and former elected prosecutors filed an amicus brief in support of Mr. Bernard. The amicus brief stated, “when the government cheats to obtain a conviction and a sentence of death, it undermines our entire system of justice.” The Supreme Court declined to stay the execution and to review the certiorari petition on December 10. Justices Sotomayor, Breyer, and Kagan dissented, with Justice Sotomayor writing that the Court’s denial would ensure Mr. Bernard would “never ha[ve] the opportunity to test the merits” of his “troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him.”

Mr. Bernard and Alfred Bourgeois also pressed a joint complaint and preliminary injunction request in D.C. District Court on the issue of the execution date notice each had been provided, alleging that the Government had violated the Federal Death Penalty Act (FDPA) by its noncompliance with the state death penalty laws of Texas. Mr. Bernard received 55 days’ notice, and as discussed above, Mr. Bourgeois received 21, in contrast with the Texas law requiring at least 91 days’ notice of an execution date. On December 6, the court denied a preliminary injunction, finding that, although the Government’s notice period violated Texas law, and therefore the FDPA, the plaintiffs would not be able to successfully demonstrate that they were irreparably harmed by the violation. In reaching this decision, the court noted the D.C. Circuit and Supreme Courts’ prior vacaturs of preliminary injunctions the district court had granted. In particular, as the district court noted, the D.C. Circuit Court held in the lethal injection matter that the Government’s FDCA violation did not amount to a showing of irreparable harm, and the “Supreme Court has made clear that the prospect of an inmate being executed prior to their claims being fully litigated will not serve as a basis for injunctive relief.” The D.C. Circuit Court issued a per curiam summary order denying a preliminary injunction pending appeal on December 9, and by a 5-4 vote denied en banc review the following day.

Alfred Bourgeois: executed December 11, 2020

Mr. Bourgeois had initially been set for execution in January 2020 as one of the first five prisoners whose executions were scheduled alongside the announcement of the resumption of federal executions in July 2019. Those dates were stayed by the D.C. District Court in conjunction with the prisoners’ lethal injection litigation. Mr. Bourgeois then received a stay in the Southern District of Indiana in March 2020 to allow review of his habeas petition alleging that, as a person with intellectual disability, his execution is categorically barred under Atkins v. Virginia and the FDPA, which prevented the DOJ from setting a new date for him following the lethal injection stay reversal in April 2020. Mr. Bourgeois argued in his Seventh Circuit proceedings that his prior litigation in the federal jurisdiction of conviction, the U.S. District Court for the Southern District of Texas, was inadequate, as the Supreme Court’s intellectual disability jurisprudence had substantively advanced in the intervening years.

On appeal by the Government in the Seventh Circuit, the appellate court vacated the stay on October 6, 2020. The Seventh Circuit panel found Mr. Bourgeois had not proven the necessary “structural inadequacy” of the prior proceedings; the full Seventh Circuit bench then denied Mr. Bourgeois’ motion for reconsideration on December 1. Mr. Bourgeois petitioned the U.S. Supreme Court for review the following day. On December 11, the Court denied Mr. Bourgeois a stay or certiorari review. Justice Sotomayor, joined by Justice Kagan, wrote in dissent, noting the “significant support” she found in the FDPA for his argument that his intellectual disability claim should have overcome procedural barriers to enable review under current medical standards.

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