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Justice Dept. plans three executions before Biden’s inauguration

President-elect Joe Biden has pledged to eliminate the federal death penalty.
President-elect Joe Biden has pledged to eliminate the federal death penalty.RUTH FREMSON/NYT

WASHINGTON — In the final weeks of President Donald Trump’s term, his administration intends to execute three inmates on federal death row, the last scheduled executions by the Justice Department before the inauguration of President-elect Joe Biden, who has signaled he will end federal use of capital punishment.

Since July, when it resumed carrying out the death penalty after a 17-year hiatus, the Trump administration has executed seven federal inmates. Weeks before Biden is sworn in, the three inmates face the prospect of being the last federal prisoners to die by capital punishment for at least as long as he remains in office.

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Orlando Cordia Hall, 49, convicted in the brutal death of a teenage girl, is scheduled to be executed Thursday. Two others prisoners are to be executed in December, including Lisa M. Montgomery, the only woman on federal death row.

Biden has pledged to eliminate the death penalty. His campaign promised to work to pass legislation to end capital punishment on the federal level and incentivize states to follow suit. An aide reiterated Biden’s platform when asked how he planned to do so and did not respond to requests for comment on the scheduled executions.

The Justice Department under Trump resumed federal capital punishment this summer after a nearly two-decade-long informal moratorium. Before then, only three people had been executed by the federal government in the past 50 years, according to Bureau of Prisons data.

Biden came under criticism during the Democratic primary campaign for his role in passing the Violent Crime Control and Law Enforcement Act of 1994. Among other provisions, the bill expanded the crimes eligible for the federal death penalty.

Like most of those on federal death row, the three inmates awaiting execution were all convicted under a part of the violent crime bill known as the Federal Death Penalty Act of 1994, according to Robert C. Owen, a lawyer representing two of those scheduled for execution. Hall was among the first people sentenced to death under the law.

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The three inmates all have litigation in the works that seeks to halt their executions, although it is unclear how receptive the Supreme Court might be to their pleas, especially with the confirmation of Justice Amy Coney Barrett last month. In July, she was on a panel of judges on the 7th U.S. Circuit Court of Appeals that allowed the first federal execution in nearly two decades to proceed.

Even before Barrett’s confirmation, the Supreme Court’s conservative majority has been unreceptive this year to requests to delay the executions.

Federal executions during a transition of power are extremely unusual, according to Robert Dunham, the executive director of the Death Penalty Information Center. He said that presidents have generally deferred to the incoming administration.

“This is another part of the Trump legacy that’s inconsistent with American norms,” he said. “If the administration followed the normal rules of civility that have been followed throughout the history in this country, it wouldn’t be an issue. The executions wouldn’t go forward.”

The Justice Department did not respond to requests for comment about the timing of the executions.

Each of three inmates, who are to be put to death by lethal injection at the federal penitentiary in Terre Haute, Indiana, was implicated in a gruesome crime. Hall was convicted of “kidnapping resulting in death,” among other offenses, after he and several accomplices who ran a marijuana trafficking operation kidnapped, raped and buried alive a 16-year-old girl in 1994, according to the Justice Department.

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Brandon Bernard, 40, was among a group that murdered two youth ministers on the Fort Hood military reservation in 1999, the Justice Department said. The federal government executed one of his accomplices in the case, Christopher Vialva, in September. Bernard was 18 at the time of the crimes.

The government also plans to execute Montgomery, 52, who would be the first woman to be executed by the federal government in nearly 70 years. She was convicted of kidnapping resulting in death in 2007, after she strangled a pregnant woman and abducted the unborn child, the Justice Department said.

Lawyers for Montgomery said she was a victim of sex trafficking and sexual abuse as a child. She suffers from bipolar disorder and complex post-traumatic stress disorder in addition to hallucinations, psychosis, mania and depression, according to a court filing from her lawyers.

Owen, who represents Hall and Bernard, said he had not seen either of his clients in prison for some time because of the coronavirus pandemic. He said the prisoners scheduled for execution were “essentially randomly selected offenders.”

Owen also noted that Americans had voted for Biden, a candidate who has openly expressed opposition to federal capital punishment, and argued that these executions a few weeks before his inauguration would be “an arbitrary, unjust tragedy.”

“How can we be killing people between now and January?” he said. “Those people are in effect caught in an eddy of history. They are being swirled around in an eddy that does not represent the main flow of American political opinion and social judgment about the death penalty.

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One of Montgomery’s lawyers, Kelley Henry, said her client was being held in the worst conditions she had seen in 30 years of capital litigation.

For the first two weeks after the warrant was issued for her execution, Montgomery was forced to wear an anti-suicide smock without underwear and expose herself to potential onlookers, including men, when she used the restroom, Henry said. Montgomery spoke of night terrors of being raped, and a male guard told her that he had seen her use the restroom, a remark intended to underscore that he had seen her naked, Henry said.

“Even in Guantánamo Bay, when the men use the bathroom, they get a privacy shield,” she said. Montgomery, who is currently held at a federal medical center in Fort Worth, Texas, did not use the restroom for a week at one point, Henry said, but she has since been provided mesh underwear. The Bureau of Prisons said it would not comment on pending litigation or matters that are the subject of legal proceedings.

Henry and another lawyer representing Montgomery both received COVID diagnoses shortly after visiting their client.

Several other lawyers represented Montgomery in a new lawsuit filed Nov. 12 to delay her execution, arguing that she would not have sufficient access to her long-standing counsel during the clemency process in light of their COVID diagnoses.

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Diane Mattingly, 57, Montgomery’s half sister, said the decision about Montgomery’s execution should be delayed for the incoming administration. Mattingly said she was praying that someone on the court would issue a stay until the new administration.

“But if we can’t have that, I’m begging Trump to open up his heart and see the damage and the terror that this woman has endured her whole life,” she said. “I’m like, ‘Why now? Why are they doing this now?’”

This article originally appeared in The New York Times.