Will Trump's DOJ Be the Last To Carry Out Federal Executions? | Opinion

In the middle of a pandemic, racial unrest and the most bitterly contested presidential election in memory, it's largely gone unnoticed. But for many liberals, it's just one more reason to loathe the Trump presidency.

In the last six months, the federal government began executing inmates on death row for the first time in 17 years. Since July, 10 convicted murderers have been executed. The last two—Brandon Bernard and Alfred Bourgeois died on December 10 and 11, respectively—were the subjects of unsuccessful campaigns (in Bernard's case, from both liberal anti-death penalty activists and some people close to President Trump) to delay or commute their sentences.

Three more people are scheduled for execution next month, during the final week of the Trump presidency. One of them, Lisa Montgomery, would be the first woman executed by the federal government in more than 70 years, and only the fourth to be executed in U.S. history.

With President-elect Joe Biden pledging to work to end the death penalty, these may be the last federal executions to take place for years. Though the issue was ignored during the presidential campaign, Trump's support for the death penalty is seen by his liberal detractors as in keeping with what they consider to be the brutal and inhumane tone of his administration. But rather than helping to make the argument for death penalty abolishment, a close look at these sentences that will be carried out during Trump's lame duck period does the precise opposite. By declining to intervene in these cases, Trump is not only acting in accordance with the beliefs of the majority of Americans. He's also doing the right thing, because death is the only just and appropriate sentence for the merciless criminals about to be executed.

While a majority of Americans still support the death penalty, support for it has declined sharply over the last 26 years. In 1994, as Congress prepared to pass the draconian crime bill sponsored by then-Senator Joe Biden—and for which he has spent the last two years endlessly apologizing—support for executions was at an all-time high of 80 percent of Americans, according to Gallup. But since then, support for the death penalty has steadily declined, with a September 2020 Gallup poll showing that just 55 percent supported it. That's the lowest such figure in more than 50 years.

The reasons for this decline are not hard to understand.

Growing numbers of Americans believe the death penalty is administered unfairly, with close to half of respondents now agreeing with that sentiment. Others have claimed it is racist because a disproportionate number of those who have been executed are African-American. There is also a widespread belief that death sentences are oftentimes the result of judicial errors that might be reversed too late to save the life of an innocent—or at least not quite as culpable—person. But the use of DNA evidence, which has overturned in recent years many guilty verdicts that were based on untrustworthy testimony or circumstantial evidence, has actually made such errors far less likely.

These points—along with the belief that the death penalty is barbaric—are often brought up by anti-death penalty activists, like Sister Helen Prejean of Dead Man Walking (the 1995 film, starring Susan Sarandon and Sean Penn, which helped shift opinion on the issue) fame, who has campaigned to save the lives of all those the Trump administration has scheduled for execution. But as much as she has worked to depict these sentences as unjust, an examination of each of their crimes shows why Trump and Attorney General William Barr were correct in insisting that the decisions of the judges and the juries in these cases be left untouched.

The most controversial of the cases was that of Brandon Bernard. He was only 18 in 1998, when he committed the crime which ultimately cost him his life 22 years later. The list of those pleading for his life included lawyer Alan Dershowitz and former Judge Ken Starr, who both served as members of President Trump's defense team during his impeachment trial. They joined Bernard's defense in asking the Supreme Court for a stay of execution (only the three liberal justices voted to grant the stay), and Dershowitz said he spoke with the White House on his client's behalf. Kim Kardashian West, who had successfully appealed to the White House in another case, also asked Trump to stop Bernard's execution.

The argument against executing Bernard was his extreme youth when he took part in the murders of Tood and Stacie Bagley. The Supreme Court has ruled, perhaps erroneously, that it is unconstitutional to execute anyone who was under 18 when he or she committed a capital offense. But Bernard was indeed just over 18, while all but one of the others responsible for the crime were under 18 at the time and therefore evaded the death penalty. During his 22 years in jail, Bernard was described as having grown up; he expressed remorse for his part in the murders of the Bagleys. Some of the jurors involved in his case also subsequently advocated for the commutation of his sentence.

The Bagleys were two youth ministers who had given Bernard and a group of his associates a ride. They were robbed and then put in the car's trunk. The group decided to kill them, and the two were shot and the car subsequently set on fire. There is a dispute about whether Bernard was a leader of the gang, as the government asserted, or just one of its members.

U.S. Attorney General William Barr
U.S. Attorney General William Barr Jeff Roberson - Pool/Getty Images

But the fact remains that it was Bernard who purchased the lighter fluid responsible for the fire, and he was the one who ignited it. The shooting was committed by another person, but it was done with Bernard's gun, which not unreasonably interpreted by prosecutors as signifying his assent. What's more, while Todd Bagley died of a gunshot wound, Stacie was rendered merely unconscious, making it likely that she was burned to death by Bernard's direct actions.

While he may have been young, Bernard was an adult and therefore responsible for his actions when he helped murder the Bagleys in the sort of callous and gruesome fashion that is a prerequisite for a death penalty sentence.

Bourgeois' case was also the subject of intense controversy. His advocates claimed that he was too intellectually disabled to be held responsible for his crime, in accordance with the Federal Death Penalty Act of 1994. But the only evidence to justify classifying Bourgeois in this way were low IQ scores and mental evaluations carried out under the supervision of his defense team. Bourgeois, who was in his 30s at the time of his crime in 2002, had had been a truck driver and employed. The arguments for him being mentally disabled were thus rejected by the courts.

Moreover, the barbaric nature of his crime also cries out for more than merely housing him in a prison for the rest of his life. Bourgeois was responsible for sexually molesting and then torturing and beating to death his two-and-a-half-year-old daughter. Nor did he ever express remorse.

As for Montgomery, Sister Prejean claims that the problem with her case, as well as others, is that prosecutors, judges and jurors seize on the mere facts of a crime without putting it in the context of a defendant's entire life. For Montgomery, this means putting it in the context of a life in which she had been subjected to "a lifetime of sexual abuse" by her stepfather and her two husbands. No doubt, she suffered.

But once again, consider the crime. Montgomery was responsible for attacking Bobbie Jo Stinnett, a 23-year-old acquaintance who believed she had met Montgomery to purchase a dog. Stinnett, who was eight months pregnant at the time, was strangled by Montgomery, who then proceeded to cut the unborn child out of her body and take it away with her. While the bizarre nature of her crime speaks to the severity of her problems, Montgomery was a fully functioning adult capable of making complex decisions and outright deceptions. While her defense team argued that she suffered from depression and a rare disorder that caused her to falsely believe she was pregnant, the jurors and the judge thought the government experts were more persuasive. As in many other such cases, subsequent appeals are based on the idea that she received an incompetent defense—but the record shows that her lawyer made the best case he could for a defendant who was guilty of a horrendous crime.

Even if we were to dismiss the idea that the death penalty is a deterrent to future murder, such acts of depraved indifference to innocent life cry out for more than just the usual platitudes about preserving the lives of even the worst criminals.

Allowing persons who have been convicted of the most terrible crimes imaginable to live denies closure to victims and their families. Most importantly, it also treats the taking of innocent life with a lack of seriousness, which undermines the very foundation of civilized societies.

The death penalty should only be applied in the rare cases when there is no doubt about guilt, and in which the egregious nature of the crime is such that tolerating the continued life of the criminal is unimaginable. When it comes to the crimes committed by Bernard, Bourgeois and Montgomery, life in prison, however awful, is not a proportionate or just response. As much as we may understand the desire to avoid the taking of any life, the Department of Justice's efforts, backed up by the president, to seek the death penalty in all of these cases, was both moral and legally correct.

Should a Biden administration decide not to execute persons guilty of similar crimes as these, it will not be evidence of the administration upholding a higher standard, but a far lower one that undermines both justice and decency.

Jonathan S. Tobin is editor in chief of JNS.org, a senior contributor to The Federalist and a columnist for the New York Post. Follow him on Twitter at: @jonathans_tobin.

The views expressed in this article are the writer's own.