There will be blood: Coronavirus, conflict and capital punishment – ABA Journal

The curtain is closing on the Trump years, and America is grappling with what comes next. From families separated at the border to a pandemic raging out of control to a macabre federal execution spree, the U.S. arguably has become less that "shining city on a hill" and more like a house of horrors.

Photo of Liane Jackson by Callie Lipkin/ABA Journal.

In too many cases, collateral damage has been deemed inevitable and acceptable, in the service of expediency and political capital. Guilt or innocence have been less important than a message of tough intolerance. In the past four years, political ideology has grown dangerously aligned with totalitarian regimes where the rule of law is not just an afterthought, its an oxymoron.

A tough law and order approach to justice has been the hallmark of this administration, often with alacrity and vengeance prioritized over constitutional rights. President Donald Trump has encouraged a more aggressive police force, unleashed law enforcement on peaceful civilian protesters, praised violent white supremacists, denigrated science, and in 2020, instigated the bloodiest sweep of death row in more than a century.

But Trumps revival of the federal death penalty after years of dormancy isnt just about criminal justice, its a reflection of his administrations Old Testament throughline that has impacted every aspect of his national response.

While nearly every nation in Europe and Latin America has abandoned capital punishment, and with public support in the U.S. at an all-time low, the Trump administration nonetheless reinstated federal executions for the first time in 17 years and wasted no time playing catch up.

In 2020, the Federal Bureau of Prisons executed 10 inmates in six months, more than all the states combined. The pandemic has imperiled those working to implement the executions, has compromised defense teams ability to effectively represent their clients, and even prevented witnesses presence at executions. Nonetheless, the Department of Justice has pressed forward with its draconian agenda, planning executions within days of President-elect Joe Bidens inauguration.

As could be expected, carrying out executions during a pandemic has created a reckless domino effect, adding strain to a system already ill-equipped to deal with disease. The governments rush to kill has caused senseless risk for incarcerated people, prison staff, and everyone who lives in Terre Haute, Indiana, the ACLU wrote in an analysis of data from the Bureau of Prisons showing federal executions likely caused a COVID-19 spike.

In November, ABA President Patricia Lee Refo wrote Trump, urging him to offer reprieves: At a time of national crisis such as this, the public interest is not served by rushing forward with executions at the expense of due process, fundamental fairness and individual health and safety.

But its all in pursuit of a barbaric sense of justice that disregards public sentiment. To expedite the killings, Attorney General William Barr bypassed laws regarding the acquisition of lethal injection drugs and fast-tracked a rule to expand execution methods to include death by firing squad and electrocution.

Lisa Montgomery, the only woman on federal death row and the first to face execution in nearly 70 years, is scheduled to die Jan. 12. Montgomery is mentally ill, takes antipsychotic medications and her competency to be executed is regularly monitored.

A federal court granted a temporary stay in her case in November after both of her attorneys became ill with COVID-19 and were unable to file a clemency petition on her behalf. Cory Johnson, who attorneys have argued is intellectually disabled, is set for lethal injection Jan. 14, and Dustin John Higgs is scheduled to be put to death on Jan. 15. Both Johnson and Higgs have tested positive for COVID-19, and their attorneys are petitioning for stays of execution.

The likelihood any death row inmate would get a pardon from Trump is lowso far clemency from the president has been largely reserved for war criminals, corrupt political allies and friends. Its also unlikely the conservative-leaning U.S. Supreme Court would grant any last-minute reprieve, as the justices have been busy rejecting habeas petitions and reversing stays of execution.

While Catholic Justices Brett M. Kavanaugh, John G. Roberts Jr., Clarence Thomas, Amy Coney Barrett and Samuel A. Alito Jr. have mostly co-signed President Trumps death penalty agenda, this fall, the Roman Catholic Church unequivocally stated that the death penalty is universally unacceptable and that it would work toward its abolition, a position President-elect Biden, a practicing Catholic, supports. Pope Francis has declared opposition to capital punishment based not just on mercy, but in opposition to the idea of revenge and viewing punishment in a vindictive and even cruel way.

According to a recent Gallup poll, the percentage of Americans who consider the death penalty morally acceptable has fallen to a record low, with 60% percent preferring life without the possibility of parole to execution. State executions and new death sentences imposed are at their lowest levels in decades, continuing a sharp decline that began in 1999.

But Trump has made no secret of his philosophy, telling Larry King in 1989: Maybe hate is what we need if were gonna get something done, a statement he made pushing for executions in the notorious Central Park Five case, where five Black and Latino teens were wrongfully convicted of murdering a jogger.

They should be forced to suffer and, when they kill, they should be executed for their crimes. They must serve as examples for their crimes, Trump wrote in the $85,000 full-page ads he took out in four New York papers after the teens were arrested.

The Central Park Five were exonerated in 2002 after a convicted murderer confessed to the crime and DNA evidence proved their innocence. Despite this fact, Trump doubled down and never apologized.

Research shows the death penalty is racist, flawed and costly, inhumane and unjust, arbitrary and capricious, with no deterrent effect on public safety. According to the Death Penalty Information Center, about 42% of inmates on death row are Black, despite representing 13 percent of the population. Of the five people to be scheduled for execution between November 2020 and January 2021, four were Black.

And there are innocent people on death row. Since 1973, at least 172 people sentenced to death were later found to be innocent of the crime charged and more than half of the wrongfully convicted were Black.

If all the currently scheduled executions proceed, Trump will have put to death more people in a single year than any other administration since 1896. And no outgoing president in modern history has overseen an execution.

Trumps lame duck death chambers are the first since Grover Cleveland presided over an execution in 1889. Biden has said he will work to end federal executions, but theres nothing he can do about the administrations race to kill before Inauguration Day.

After Jan. 20, the country will turn the page on the controversy and carnage that was a hallmark of the last four years. But in these final, waning days, as the flow of devastating losses and deaths continues unabated, the loss of humanity should be no surprise.

Intersection is a column that explores issues of race, gender and law across Americas criminal and social justice landscape.

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There will be blood: Coronavirus, conflict and capital punishment - ABA Journal