A Pause in Federal Executions, but Uncertainty About What’s Next

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President Biden’s Justice Department has ordered a moratorium on carrying out federal death sentences after a surge in executions under the Trump administration.

People protesting the death penalty near the federal prison complex in Terre Haute, Ind., last year.
Credit...Michael Conroy/Associated Press

Hailey Fuchs

July 16, 2021, 3:59 p.m. ET

The routine usually began around 5 p.m. Inmates could hear the door to death row open and the jangling of keys. A convict would be escorted away by the guards to hear the news from the warden: His execution date had been set.

Without going back to his cell, the condemned man would be led to a special block where he would spend his final days.

“You knew that they was coming to get someone,” recalled Julius Robinson, a former drug dealer who was convicted in 2002 of two murders and of involvement in a criminal enterprise that led to a third. Facing a death sentence himself, Mr. Robinson, who is held in the federal prison complex in Terre Haute, Ind., grew intimately familiar with the Federal Bureau of Prisons protocol for letting inmates know when their time had come.

“Once you hear that,” he said of that ominous activity on the cell block, “you know someone was getting the date.”

It was a pattern that played out regularly in the final months of the Trump administration, as the Justice Department, after a nearly two-decade informal moratorium on carrying out the federal death penalty, sped through 13 executions that extended into former President Donald J. Trump’s final week in office.

Without remaining appeals that could stand in the government’s way, Mr. Robinson was just as eligible for execution as any of those whose cases were selected by the Trump administration. A federal appeals court that reviewed his case in 2004 found that Mr. Robinson, “also known by names such as ‘Scarface,’ entangled himself in a sadistic world of narcotics and violence in which he personally committed at least two senseless murders.”

And few would have much sympathy for him or others awaiting execution. Polling suggests that most Americans favor capital punishment for murder even though they have doubts about whether it is applied fairly.

Speaking from a telephone in the special confinement unit — the Bureau of Prisons name for death row — he described the fraught atmosphere when the Trump administration was carrying out executions on a regular basis.

“You never knew if you was up next,” he said in an interview after Mr. Trump left office. “It’s all just luck of the draw.”

While many relatives of their victims continue to see capital punishment as justice and the issue remains as politically contentious as ever, for Mr. Robinson and the other roughly 45 men remaining on federal death row — child murderers and rapists among them — the election of President Biden offered some reprieve.

Mr. Biden, who was instrumental as a senator in passing the law that put many of the condemned inmates on death row, campaigned on a platform to end the federal death penalty and incentivize states to follow suit. His Justice Department has since placed a moratorium on executions amid a review of department policies related to capital punishment.

But what happens next — and whether their reprieve will last beyond the current administration — remains unclear.

Progressives in Congress are pressing the administration to dismantle the federal capital punishment system and formally commute all federal death sentences. Completely ending use of the federal capital punishment would require Congress to pass legislation.

“This is about people’s lives, and state-sanctioned murder is not justice,” said Representative Ayanna Pressley, a Massachusetts Democrat who has introduced a bill that would end the federal death penalty.

Many cases remain in flux. The day before Mr. Biden was inaugurated, the U.S. Court of Appeals for the 10th Circuit overturned the death sentence of Kenneth Barrett, who killed an Oklahoma state trooper when drug task force officers attempted to execute a warrant on his home. In December, the Justice Department informed the defense team for Azibo Aquart — a drug dealer convicted of what a prosecutor described as “the brutal bludgeoning murders of three defenseless victims” — that it would no longer seek the death penalty in his case.

Among those facing federal execution are Dylann Roof, the white supremacist who murdered nine Black churchgoers in 2015; two prison escapees who murdered two women during a crime rampage, and a drug trafficker who from behind bars ordered an arson that led to the deaths of six family members of a man whom he believed to be cooperating with the government, including the man’s 15-month-old son.

The fate of these men and others could rest with Mr. Biden.

Mass commutations would no doubt create political problems for Mr. Biden, especially as Republicans try to make an issue out of rising rates of violent crime.


Credit...Stefani Reynolds for The New York Times

If Mr. Biden commuted to life imprisonment all federal death sentences, he would effectively disrupt “the appropriate balance” of the executive, legislature and the judiciary, said Robert Blecker, professor emeritus at New York Law School and a proponent of the death penalty. He pointed to one of the best-known federal death penalty cases, that of the Boston Marathon bomber, Dzhokhar Tsarnaev, whose crimes left four dead and injured more than 260.

“You’re negating the unanimous decision of a jury. You’re negating the appellate courts,” Mr. Blecker said. “You’re negating so many other voices.”

The question is already surfacing in the early stages of the 2022 midterm elections. Senator Tom Cotton, Republican of Arkansas, recently criticized the Justice Department, saying it was disgraceful that the administration’s moratorium on executions would apply to Mr. Roof. However, Mr. Roof is in the midst of a direct appeal of his sentence, during which he is not eligible for execution.

Several Senate Democrats from pro-death penalty states are up for re-election in 2022, and races in other states where the death penalty remains legal are likely to be competitive.

Those who “don’t want Biden to succeed will be preparing to kind of restoke the politics of fear if he commutes death row,” said Robert Dunham, the executive director of the Death Penalty Information Center, adding that if the president does not act, “he risks alienating important parts of the Democratic and independent bases.”

So far, the administration has sent mixed signals. It has quietly dropped the death penalty in a number of cases in which the Justice Department had previously pursued capital punishment, according to Mr. Dunham. However, the Justice Department also defended the death sentence in Mr. Roof’s case in the U.S. Court of Appeals for the Fourth Circuit and argued for the death sentence to be reinstated for Mr. Tsarnaev in the Supreme Court.

Any further efforts to carry out the federal death penalty will most likely win support from the Supreme Court. The court, its conservative majority bolstered by Mr. Trump’s three picks, moved consistently to allow the Trump-era executions to proceed.

States where the death penalty remains legal have been emboldened by the Supreme Court’s actions, Mr. Dunham said. For one, a report in May disclosed that Arizona had refurbished and tested a gas chamber and purchased chemicals used to make hydrogen cyanide, a gas associated with a poison used by the Nazis. In May, the South Carolina legislature authorized the use of a firing squad or electrocution in the event that lethal injection is unavailable. States have struggled to obtain drugs to carry out execution by lethal injection.

The federal policy review announced by Attorney General Merrick B. Garland will revisit a Trump-era rule that also made additional means of execution, including a firing squad and electrocution, available to the federal government.

While the issue plays out in federal agencies and the courts and on the campaign trail, the inmates on death row in Terre Haute sometimes do their own legal research to help out in one another’s cases. “We see things out of a different box than our lawyers,” Mr. Robinson said.

As executions resumed a year ago and then became more frequent, the inmates developed a routine. Before leaving for the death chamber, they would mark their belongings with the names of those who would receive their items. Some would also leave farewell notes. Mr. Robinson — identified by the federal appeals court as having been a wholesale drug dealer operating in five states before his convictions — would sometimes prepare burritos or a bagel pizza for the condemned man.

The men who were executed under the Trump administration took varying attitudes to their upcoming execution dates, he said. Some were more optimistic than others.

In his final days, Daniel Lewis Lee — who was convicted of his part in the murders in 1996 of a family of three and was the first man executed by the Trump administration — was still hopeful about the challenges to his execution that played out in court until just moments before his death, although he worried for his daughter, Mr. Robinson said.

In the intervening months, Mr. Robinson’s cohort of fellow inmates grew significantly smaller. Among an original group of around seven inmates who worshiped together, two of them, Christopher Vialva and Brandon Bernard, were executed. Mr. Vialva and Mr. Bernard were convicted of the 1999 carjacking and murder of a couple in Texas.

“It was like everyone around you was disappearing,” Mr. Robinson recalled.

For now, not much has changed for Mr. Robinson and others left on death row. He wakes up each morning about 3:30 a.m., and then exercises in the gym and begins his duties as an orderly, a paid position for inmates that very few men on death row hold. Throughout the day, he cleans up around the special confinement unit, and every so often he plays chess with another inmate, with one of the two yelling out moves to the other.

He said Mr. Biden’s victory brought some joy to death row, but it was bittersweet.

“It’s a little late, right, for the guys who got executed,” he said. “A couple of guys had like some survivor’s guilt, you know.”

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