- Two federal death row inmates have been executed this week, the first time that’s happened in 17 years. Another is expected to be put to death on Friday.
- The sudden policy shift came after four of President Trump’s judicial appointees played pivotal roles on decisions clearing the way for the Justice Department to resume federal executions.
- More than a dozen legal insiders said Trump’s emphasis on picking judges with narrow views on the Constitution went a long way toward determining if death row inmates would ever need to worry about facing the ultimate punishment for their crimes.
- “The difference between Daniel Lee being executed and Daniel Lee not being executed is Mitch McConnell’s involvement in preventing Merrick Garland from joining the court,” said the head of a criminal justice non-profit organization, referring to Neil Gorsuch’s eventual appointment to the Supreme Court.
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Some 60 federal death row inmates are grappling with a reality no one has faced in nearly two decades. They could soon be executed.
They have Donald Trump to thank for that.
That’s because four judges appointed by the Republican president cleared the way for the first federal executions in 17 years.
Two of those judges sit on the Supreme Court, which allowed the Department of Justice to resume executions in an unsigned, middle-of-the-night ruling this week. The other two judges don’t have household names but sit on a powerful appeals court in Washington DC. In April, those two Trump appointees—also acting through an unsigned opinion—green lighted the administration’s new lethal injection plan that opponents say could cause pain before death if there is a bad batch of the drug or if it is improperly administered.
Taken together, the two court rulings may foreshadow more executions after nearly two decades in which the death penalty was on hold at the federal level. Controversy surrounding the method for lethal injections served as a big reason for the de facto moratorium. But with the new Trump-tapped judges providing the decisive votes, the courts have now effectively resolved the issue by rubber-stamping the administration’s new single-drug protocol.
More than a dozen legal insiders interviewed for this story said the dramatic shift in how the US government handles the death penalty wasn’t obvious at the start of the Trump administration. Sure, the president campaigned in 2016 on the promise to appoint judges to lifetime roles on the bench who understood that their role was to interpret the law and not write it. But only through the series of recent rulings did it become apparent the president’s emphasis on picking judges with narrow views on the Constitution would play such a big role in determining if death row inmates would ever need to worry about facing the ultimate punishment for their crimes.
The Supreme Court’s 2 a.m. ruling
It took five conservative Supreme Court justices to seal the fate of the first federal inmates in line for the death penalty, starting with a rare 2 a.m. opinion Tuesday amid a flurry of late-night, emergency court filings allowing the execution of Daniel Lee to proceed. A federal jury convicted Lee, a former white supremacist, for the 1996 murders of an 8-year-old girl and her parents in Arkansas. The Bureau of Prisons pronounced Lee dead shortly after the opinion came down Tuesday morning, making the 47-year-old felon the first federal prisoner to be executed since 2003.
Paula Casey, a former Bill Clinton-appointed federal prosecutor who handled the Lee case, said in an interview she was “quite surprised” to hear about the execution on Tuesday morning after going to bed thinking the court would take more time to deliberate. She recalled trying to withdraw the death penalty for Lee back in 1999 and even took the issue up the chain of the command to the top ranks of the Justice Department.
“Eric Holder said no,” she said, referring to the Clinton-era deputy attorney general who would go on to lead the department several years later during the Obama administration.
DOJ has long implemented a rigorous process for seeking the death penalty. Just as Clinton’s Democratic administration held steadfast for executing Lee, the last three presidential administrations of differing parties have also maintained a relatively consistent approach to the death penalty as a policy matter, said J. Richard Broughton, a former Justice Department official from George W. Bush’s administration.
But once a case is out of DOJ’s hands, it lands in a judge’s lap—or in Lee’s case, nine of them. And here’s where the Trump judges became a deciding factor.
Gorsuch and Kavanaugh make their mark
Tuesday morning’s 5-4 decision saw the conservative justices in the majority, including Trump appointees Justices Neil Gorsuch and Brett Kavanaugh. Without those two votes, it is not at all clear that the federal executions would have resumed.
“The difference between Daniel Lee being executed and Daniel Lee not being executed is Mitch McConnell’s involvement in preventing Merrick Garland from joining the court,” said Robert Dunham, the executive director of the Death Penalty Information Center, a national criminal justice non-profit organization in Washington DC.
He’s referring to Obama’s attempt to fill Antonin Scalia’s seat after the conservative Supreme Court justice’s unexpected death in February 2016. McConnell, the Senate majority leader, blocked Garland’s confirmation and effectively held the valuable vacancy open until Trump’s election opened the door for Gorsuch’s appointment. Gorsuch voted the same way Scalia would have on the issue; the late justice fiercely protected the constitutionality of the death penalty.
As for Kavanaugh, he replaced known swing-voter Justice Anthony Kennedy, whose opinions on capital punishment varied sometimes in favor of the criminal defendant.
Kennedy played a critical role as “the court’s most important expounder of human dignity as a constitutional value,” said Jonathan Simon, a University of California-Berkeley criminal law professor.
While Kennedy never completely opposed the death penalty, Simon said the former Supreme Court justice appointed by President Ronald Reagan in 1987 “seemed genuinely perturbed by the way in which our modern penal system was demeaning humanity.”
Kennedy’s opinions opposing the death penalty hinged on the individual who was sentenced to death. Most notably, in 2008, Kennedy authored a 5-4 opinion for the liberal majority in a landmark case called Kennedy v. Louisiana prohibiting the death penalty in cases of child rape but not murder (the case did not involve anyone related to Justice Kennedy).
Kavanaugh, who served in President George W. Bush’s White House, has shown signs of mirroring his predecessor’s predilection for unpredictability. Last year, he aligned with his fellow conservatives allowing a Muslim man in an Alabama state case to be executed without his requested Imam, but a few weeks later, he voted to halt the execution of a Buddhist inmate in a Texas state case because he was not allowed his spiritual adviser. But Kavanaugh has largely remained in the conservative bloc on other state death penalty cases, and he did so for the federal death penalty case Tuesday morning.
Legal experts differ on what kind of justice Kavanaugh ultimately will be when it comes to death row cases. Broughton said he thinks the newest member of the Supreme Court will generally allow the government to proceed with the death penalty and executions, while Dunham maintained that Kavanaugh’s opinions could evolve over time like Kennedy’s did.
Why ‘the second most important court in the land’ really matters
While the Supreme Court was the last obstacle to resuming federal executions, it was not the only legal roadblock laden with Trump appointees. The first key decision came out of a different but almost as powerful federal court in Washington.
The United States Court of Appeals for the District of Columbia Circuit—the DC Circuit—is often referred to as “the second most important court in the land” because of its high-profile cases and role as incubator for future Supreme Court justices. Trump has already gotten three judges confirmed to the DC Circuit. Two of them—Judges Greg Katsas and Neomi Rao— cleared the way for Lee’s execution.
Katsas and Rao were part of a three-judge panel considering the government’s bid to resume federal executions and Attorney General William Barr’s proposed new lethal injection method. The government announced its plan to execute five men convicted of murder using the new lethal injection method in July 2019, but a lower court judge in DC blocked the policy shift that November.
The DC Circuit in a 2-1 unsigned opinion in April of this year overturned the lower court judge, allowing the executions to proceed. Katsas, a former deputy White House counsel to Trump and George W. Bush DOJ political appointee, emphasized the “important governmental and public interest in the timely implementation of capital punishment.” Rao, who previously had served as Trump’s White House regulatory czar, wrote separately to reach the same result.
“Neomi Rao is the interesting case,” said Dunham. He said that the opinions she has authored favor whatever the administration is arguing. And in this case, she was the key swing vote in the government’s favor.
Lee’s path to the Supreme Court Monday night was complicated and marked by stops at two different federal appellate courts along the way. The DC Circuit was first, but the family of his victims opposed his execution and filed an emergency request to delay his execution in the Chicago-based United States Court of Appeals for the Seventh Circuit. Although she was not a make-or-break vote, Trump appointee and frequent Supreme Court short-lister Judge Amy Coney Barrett sat on the three-judge panel that considered the family’s plea and ultimately denied the request to halt the execution.
The recent Supreme Court decision “reaffirms what a lot of us have believed since President Trump was elected,” which was that his DOJ would have an aggressive approach to the federal death penalty, said Broughton.
The future depends on what happens in November. Broughton said that a Biden administration would probably have a far less aggressive approach to setting executions. Indeed, Biden is in favor of eliminating the death penalty, according to his campaign website. In response to the latest Supreme Court decision, other prominent Democrats are calling to abolish the death penalty too.
“For this administration, cruelty is the point, and the death penalty—which has been used disproportionately against Black, brown and poor people—has no place in our society and must be abolished,” said Massachusetts Rep. Ayanna Pressley, who is an outspoken opponent of the death penalty, in a statement to Insider.
Despite the resumed federal executions, Dunham said he didn’t think the death penalty would become more widespread across the country. Capital punishment, comprising only state-level executions until Tuesday, is actually on a national decline. This is the sixth straight year of fewer than 30 executions and fewer than 50 new death sentences.
But for those inmates waiting for a final reprieve from the highest court in the land “it is more likely now that the Supreme Court is not going to stand in the way,” Broughton said.
Sure enough, the Supreme Court early Thursday morning denied a second emergency application to halt the execution of Wesley Purkey, who was convicted by a Missouri jury in 1998 for murdering and dismembering a 16-year-old girl.