Last week’s attack on the Capitol in an effort to subvert democracy and invalidate Donald Trump’s defeat in November’s election has the nation’s attention focused on a likely second impeachment of the president. Meanwhile, his administration has been busy securing another dark historic distinction: overseeing more federal executions than any other administration in over a century.
The recent spate of federal executions, the latest carried out under a rule recently enacted by the Department of Justice, also includes the first to take place during a presidential transition since the last days of Grover Cleveland’s presidency, in 1897.
That DOJ policy, the Manner of Execution Rule, made a brief splash in the headlines in November for its authorization of execution methods beyond lethal injection, including anything from firing squads to hanging. But what is far more concerning is a provision granting the attorney general broader flexibility to deviate from previous DOJ rules and regulations on executions “to the extent that applicable law requires different procedures.”
Such broad discretion is ripe for arbitrariness or abuse and runs counter to the decades-long trend of a decline in executions outside of the federal system and the American people’s growing opposition to the death penalty.
The Justice Department must rescind that rule now or, at the very least, doing so should be at the top of the Biden administration’s to-do list. Also, federal judges must look critically at the Trump administration’s fast march of people to the federal death chamber to ensure that justice is done and the constitutional rights of those facing the harshest sentence possible — and one the Globe editorial board believes should be abolished — are fully protected.
Under Trump, who has long been a vocal advocate for the death penalty, federal executions resumed after a 17-year hiatus that had been triggered by concerns about lethal injections as well as racial inequities and constitutional violations. President-elect Joe Biden opposes the death penalty and has promised to halt federal executions after he takes office, and he and his attorney general nominee, Merrick Garland, face increasing pressure from congressional Democrats to abolish it once and for all.
Advocates for federal death row inmates say the new rule, finalized just after Biden’s election, was meant to serve as a catch-all to give DOJ officials much more leeway to change the rules and ignore established norms in order to execute as many people as possible before Trump leaves office.
The three executions currently scheduled to take place before Inauguration Day are prime examples.
“Ordinarily, executions are not carried out in a transition period. These executions are scheduled days before President-elect Biden is scheduled to take the oath of office,” said Elizabeth Prelogar, an attorney at Cooley LLP, who is representing four individuals on federal death row seeking an immediate stay of the rule, one of whom is set to be put to death Jan. 15. “It does feel like a calculated rush to carry out executions and put people to death,” Prelogar said. (It’s unclear if additional executions could be scheduled beyond the three before Biden takes office.)
The recent drama involving another person scheduled to be executed before Inauguration Day, the only woman on federal death row, exemplifies the arbitrariness the DOJ’s execution rush has created. Lisa Montgomery was scheduled to be put to death last month, but her execution was delayed after her attorneys contracted COVID-19 while visiting her at a federal correction facility in Indiana.
The Bureau of Prisons rescheduled her execution for Tuesday, but a federal trial court blocked that move, ruling that an execution could not be rescheduled while a stay order remained in place.
A federal appeals court panel disagreed, ruling that the execution can move forward. Montgomery’s attorneys announced appealed that ruling to the full appeals court, and asked Trump himself for clemency.
If the appeals process runs out the clock on the Trump administration, Montgomery may not be executed at all. If not, she may be be executed in a matter of hours. But an inmate’s life or death should not be subject to serendipity or happenstance. Such an outcome runs counter to the spirit, if not the letter, of the Eighth Amendment’s prohibition of cruel or unusual punishment.
As does the fast march to the death chamber underway in the waning days of the Trump administration.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.