The Politics of the Death Penalty – Trump's Legacy of Violence

Donald Trump’s appalling disregard and contempt for democratic values and institutions was witnessed by the watching world last week. The storming of the Capitol by an armed and violent Trump-supporting mob, incited by the President, in an attempt to terrorise Congress and stop the peaceful transfer of power, was both extraordinary and disgraceful, and provoked revulsion and horror around the world. Five people died in the chaos that ensued, including a police officer. Trump refused to condemn those attacking the Capitol, and four hours after the violent insurrection posted a mixed message video asking supporters to go home, but also praised those very same supporters, repeating baseless accusations of election fraud. The incitement of violence and assault on democracy should come as little surprise from a President who, given the unprecedented number of Federal executions he has authorised in recent months, is in the midst of a killing spree.

The violent legacy of Trump’s presidency and his total disregard for basic humanity has brought the politics of capital punishment into sharp focus. In mid-July 2020, the Trump administration restarted the Federal death penalty after a 17-year hiatus by carrying out the execution of Daniel Lewis Lee. The next six months witnessed a further nine Federal executions. Last year, 17 executions were carried out in the US, and for the first time in history the Federal Government carried out more executions than the States who were responsible for the other seven executions. In 2020, just five States carried out executions (22 States have now abolished the death penalty), less than a third of the 22 executions carried out in the US by seven States in 2019.

To add some further context to the death penalty problem in the US, six prisoners were exonerated from death row in 2020 – in each case prosecutorial misconduct contributed to the wrongful conviction. Trump’s killing spree ignores the problems plaguing the US death penalty and is out of step with dwindling public support. Support for the death penalty is at its lowest level in the US in a half-century, with opposition higher than any time since 1966, according to the 2020 annual Gallup poll on Americans’ attitudes about capital punishment. Fifty-five percent of respondents to a national survey conducted between 30 September and 15 October 2020 told Gallup that they were “in favour of the death penalty for a person convicted of murder,” down one percentage point from the levels reported in 2018 and 2019. Forty-three percent of respondents told Gallup that they were opposed to the death penalty as a punishment for murder, the most since 47 percent of Americans expressed opposition to capital punishment in the May 1966 Gallup survey.

The shift in public attitudes reflects a growing understanding and acknowledgment that the use of the death penalty is riddled with arbitrariness and discrimination, with increasing concern about sending innocent people and the undeserving to death row.

The ten Federal executions carried out in 2020 have shown a total disregard for political precedent and human rights and created a litany of firsts – the killings included the first Native American ever executed by the Federal Government for the murder of a member of his own tribe on tribal lands; the first Federal executions of teenage offenders for 68 years; and the first Federal execution in 57 years for a crime committed in a State that had abolished the death penalty. Of further concern is the scheduled executions of two persons with intellectual disabilities and two with serious mental illness.

The timing of the executions smack of political opportunism of the worst kind – embracing gratuitous violence and legitimising state violence, a hallmark of Trump’s presidency. Seven of the Federal executions were carried out in the four months leading up to the Presidential elections; the eighth, Orlando Hall, was put to death on 19 November. The Trump-sanctioned killings continued in December 2020, with the executions of Branson Bernard and Alfred Bourgeois. The last time a US government carried out executions between a Presidential election and the inauguration of a new President was in 1889, some 132 years ago. The killings have not ended, with three more executions scheduled this month.

Lisa Montgomery is scheduled to be put to death on 12 January – the first execution of a woman by the US government in almost 70 years. [Update: Federal judge stays Lisa Montgomery's execution pending competency hearing, January 12, 2021] Montgomery, now aged 52, committed a horrendous crime in 2004 – this is not in dispute. Nor is there any dispute that she is profoundly mentally ill – the result of a lifetime of extreme abuse. Expert witnesses instructed by a fresh team of defence lawyers who took over Montgomery’s case on appeal have produced a vast amount of medical evidence that reveals that from a young age, Montgomery was subject to an unimaginable extent of sexual violence. Doctors, psychologists and social workers have chronicled a history of sexual assaults, gang rapes, and sexual trafficking, accompanied by constant demeaning treatment, isolation, degradation, and humiliation. They have all concluded that her formative experiences amounted to torture.

Exhaustive studies of Montgomery’s childhood and early adulthood suggest she was afflicted by mental illness before and leading up to the murder she committed in 2004, yet at her trial in 2007 most of the material about her social history, mental illness and massive childhood trauma was never presented to the jury. At her trial, Montgomery was represented by a public defence lawyer who had never tried a capital case and by Fred Duchardt, an attorney whose claim to fame is that he has had more of his clients sentenced to death in federal court than any other defence lawyer in America.

Most people would baulk at the idea of killing Lisa Montgomery if they knew the extent of her illness and her history of torture and sexual violence. The reality is that most do not know, and the convenient narrative is that she is guilty of an especially heinous and dreadful crime. Trump simply does not care – his approach is one of violence, brutality, and disregard for basic human rights.

Ten men have already been put to death by the Trump administration since July – the state sanctioned killings need to stop, and they could. In recent weeks, Trump has pardoned four men for the murder of 14 Iraqi citizens, including two children. They were massacred in a gun and grenade attack in a crowded square in Baghdad. The four men walked free from prison. Yet Trump still scrambles to execute three prisoners in the last few days of his Presidency. Failing to grant clemency to Lisa Montgomery and the other two condemned men scheduled for federal execution this month – Cory Johnson and Dustin Higgs – would be another vulgar display of power.

Last week’s deadly events on Capitol Hill are Trump’s legacy. So is his killing spree, which has exposed the cruelty, brutality, and inhumanity of the death penalty. Future generations will hopefully go on to reject these shameful and macabre Presidential acts, as they come to realise that the death penalty is not about justice or fairness. In a matter of a few months, Trump has done more than most to confirm that the death penalty is arbitrary, racist, and political.

Source: law.ox.ac.uk, Saul Lehrfreund, January 11, 2021. Saul Lehrfreund is the co-executive director of The Death Penalty Project

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