By: Epiphanie Couture
In July of 2019, the Department of Justice announced that it would resume federal executions after a seventeen-year moratorium, and it scheduled the execution dates for five death row inmates.  Four of the prisoners filed suit, claiming that the executions would violate a provision of the Federal Death Penalty Act.  As the prisoners’ claims were pending, various preliminary injunctions were issued and vacated over the course of about a year, delaying the scheduled executions.  Eventually, however, each injunction was vacated, and the first federal prisoner to be executed in nearly two decades, Daniel Lewis Lee, was administered lethal injection on July 14, 2020. 
The Trump administration executed a total of ten prisoners on federal death row in 2020 and an additional three in 2021 before President Joe Biden was inaugurated.  This was the first time since the late 1800s that more than ten executions took place under one administration, and it was also the first time a presidential administration performed them during a lame-duck period in over 100 years. 
Typically, during a presidential transition, the sitting administration will refrain from taking actions that are contrary to the views of the incoming administration because the American people expressed preference to the views of the incoming president. Thus, the Trump administration not only flouted the historical convention of giving deference to the incoming administration, but did so during the midst of a global pandemic when prisoners’ rights and safety were in unprecedented jeopardy.
The rushed slew of executions toward the end of Donald Trump’s presidency is hard to understand. While campaigning and as president, Trump rarely spoke about the death penalty. Further, executing a handful of inmates who are already imprisoned does not make the country safer in any meaningful way. And, because Biden had already been elected president, the 2021 executions cannot be explained as an attempt to appear “tough on crime” in order to garner more votes.
Indeed, the final inmate executed during Trump’s presidency, Dustin Higgs, was killed a mere five days before the inauguration and was met by significant public resistance.  Higgs was convicted in 2000 for his complicity in a triple murder, but there remained considerable questions regarding his culpability and role in the offense.  In addition, lawyers expressed significant concern over the mental illness and mitigating circumstances of Lisa Montgomery, who nonetheless was executed January 13, 2021.  Considering how historically seldom federal executions have taken place, it is difficult to see these thirteen rushed executions as anything other than a final display of cruelty before the Trump administration left office.
Since President Biden took office, Attorney General Merrick Garland reinstated the moratorium on federal executions until further review, citing arbitrary and racially biased application as well as the numerous exonerations following death penalty convictions.  In 1972, the United States Supreme Court provided guidelines to reduce the arbitrariness of death penalty application among the states.  However, data suggests that those guidelines have been unsuccessful in their attempt to reduce the weight of irrelevant factors in death penalty sentencing, such as race, geography, and wealth.  For instance, only 13.4% of the United States population is Black, yet Black people make up over 40% of the people on death row.  President Biden campaigned on ending federal capital punishment, but he has not yet formally indicated the White House’s policy on the issue. 
At this point, 23 states do not have the death penalty as a possible punishment, and three more have a moratorium on it.  It is clear that public sentiment in favor of the death penalty is waning: in 2020, 43% of Americans said they were opposed to capital punishment.  This is the highest opposition to the death penalty has been since 1966, when 47% of Americans said they were opposed to it.  Looking forward, we must hope that the Biden administration follows through on its campaign promise and moves to more permanently abolish the federal death penalty, reflecting the morality of the American people.
Epiphanie is a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Her legal interests center around post-conviction work, public defense, and prison abolition. In her time outside of law school, she enjoys hiking with her goldendoodle, Charley, writing fiction, and watching A24 films.