Reflections on the Federal Death Penalty and its Precursors

Over the final six months of Donald Trump’s reign, his minions managed to kill thirteen human beings who were on federal death row. Enabled by a stacked Supreme Court that didn’t pause to examine the prisoners’ intellectual disability, mental illness, innocence, jury racial bias or any other of the myriad mitigation evidence, the federal death chamber at Terre Haute executed an unprecedented number of people in such a short period: Daniel Lewis Lee, Wesley Ira Purkey, Dustin Lee Honken, Lezmond Charles Mitchell, Keith Dwayne Nelson, William Emmett LeCroy, Jr., Christopher Andre Vialva, Orlando Cordia Hall, Brandon Bernard, Alfred Bourgeois, Lisa Marie Montgomery, Corey Johnson and Dustin John Higgs. To understand just how astounding and outside of hundreds of years of prior government behavior these thirteen homicides were, we have to put them in their historical context.

These killings were made possible by the largest ever expansion of the federal death penalty in 1994, adding sixty new capital crimes. Until then, the record had stood in Anglo-American law for 271 years. In 1723, Britain enacted the Black Act, adding fifty crimes to those punishable by death – the most ever in a single statute. [9 George I c.22]. Prohibited behavior included killing or hunting deer or rabbits, cutting down trees, undamning fishponds, setting fires to buildings or haystacks and having their faces “blacked.”. The statute was sheparded through parliament by Robert Walpole on his way to becoming prime minister. The immediate motive for the sweeping death law was the upsurge in the banned behaviors by those angry at the government’s strictly enforcing the previously loosely or unenforced regulations.

Eighteen years later, in 1741, in British New York, thirty enslaved human beings whose faces were born “blacked” were executed for setting fires and committing larcenies. Three white people were executed for participating in the larcenies and conspiring in the “revolt”, and one white man was executed for the capital offense of being a Jesuit priest and joining in the revolt conspiracy. Thirteen of the Black people were burned alive at the stake. Seventeen were hanged. All the white people were hanged. All in what the Court and prosecution labeled a slave revolt. The underlying cause of the sweeping death sentences was the maintenance of the intolerable condition of human beings being treated as non-human private property. Specifically, one of those enslaved people, Quack, was repeatedly refused entry to Fort George to see his wife- who was enslaved there as a cook. Quack responded by torching the fort. His action unleashed the pent-up anger of his fellow Africans who joined in starting a spate of fires to buildings and haystacks. This was not a revolt calculated to overthrow the slave system – though that would have been more than justified. Rather, it was the collective act of anger, frustration, and retaliation by the enslaved for being held in bondage. The judge who presided over and created the false claim of a slave revolt conspiracy was Daniel Horsmanden, on his way to becoming the chief judge of New York – a position he maintained until the Revolution. The lead prosecutors were John Chambers and Joseph Murray, on their way to giving their names to thoroughfares that led close by to where they burned people alive.

Come the Revolution and the new government sought to limit capital punishment. There was a strong reaction to the arbitrariness of British rule and the expansive extent of capital punishment. Some wanted to eliminate the death penalty altogether, but all agreed that if it should exist, the federal government would use it most sparingly. The Bill of Rights was enacted to limit what the federal government could do. The Fifth Amendment stated that “No person…be deprived of life…without due process of law.” In recent years, this explicit act to limit capital punishment by eliminating its arbitrary application was torturously misconstrued by pro-death justices into its opposite – as evidence that the framers embraced the practice. The other main thrust of the limitation was to greatly reduce the number of federal capital offenses to a dozen. The list included murder on federal property, treason, piracy and other crimes on the high seas, forgery, counterfeiting, and war-related offenses. {1 Stat., 112, 115, 117 (1790). Over the next 36 years, there were 138 federal capital trials, 118 convictions, forty-two executions, sixty-four pardons, one suicide, three died, two escaped and six were unaccounted for. [H.R. Exec. No. 20 – 146 (1829)].

Between 1829 and the end of the century, federal executions continued to decline. The conviction rate from 1826 to 1897 fell from 85% to less than 20%. The number of executions consequently fell with the exception of war-related executions during the Civil War and the addition of war-related capital offenses, such as spying, arson of a dwelling within a fort or a Navy sailor assaulting his commander. Rape also became a federal capital offense and the anti-slavery movement’s efforts which led to banning the African slave trade, led to the death penalty for its violation – though only one slave trader was ever executed. By 1897 Congress had again become critical of the capital regime. And though a bill introduced for outright abolition did not succeed, Congress passed an “Act to Reduce the Cases in Which the Death Penalty May be Inflicted.” Now there were only five federal capital crimes: murder, rape, treason, articles of war for the Army and articles of war for the Navy. The statute also abolished mandatory death sentences – another compromise between abolitionists and pro-death penalty forces – also providing a convenient tool for white supremacists who mostly wanted to use the law to kill Black people.

In the twentieth century, federal executions continued to decline. From 1927 until the end of the century, there were 24 federal executions. These included ten for espionage – eight German saboteurs during World War II and Julius and Ethel Rosenberg for spying on U.S. atom bomb research for the Soviet Union in 1953. During this period new crimes were added to the capital list as the result of high profile criminal cases, such as the kidnapping of the baby of famed aviator and Nazi sympathizer, Charles Lindbergh. In 1972 the Supreme Court in Furman v. Georgia struck down all the capital statutes in the U.S., in part out of concern for their racist application. When the Court reauthorized capital punishment in 1976 in Gregg v. Georgia, Congress tried to create a new capital procedure. That effort was blocked by the House of Representatives for twelve years. Finally, in 1988 Congress passed a substantive and procedural capital law, containing a single offense – continuing criminal enterprise.

And then, in 1994, the dam burst. Congress passed the Federal Death Penalty Act, breaking the Old Black Act record of 50 crimes, by adding 60 new capital offenses. The law’s passage was led by then-President Bill Clinton; in the House by Charles Schumer, on his way to becoming Senate Majority Leader; and in the Senate by arch segregationist Strom Thurmond and Joe Biden, on his way to becoming president. Biden truthfully praised his death penalty bill, claiming it did “everything but hang people for jaywalking.” How far Biden’s statement was from hyperbole is evident from just a few of the 60 offenses. Among other creative innovations, it allowed executing someone who committed a homicide in the course of impeding an illegal drug transaction as a commerce clause violation. A murder of a rival drug dealer “directly affected interstate commerce both by actually eliminating one retail competitor and by chilling possible competition from others.” United States v Aquart, 912 F.3d 1, 58 (2d Cir. 2018). The Aquart Court explained that the government’s burden of establishing an interstate or foreign commerce connection “is not a heavy one, and can be satisfied by ‘even a de minimis effect on interstate commerce.’” (citations omitted). Also, using firearms or ammunition that crossed state lines (There are, for example, no guns manufactured in New York State). Or having anything to do with the sale of any illicit drug – all can be used to execute someone under the infinitely expansive and expanded federal death penalty law. The Biden/Schumer law has, so far, resulted in thousands of potential capital prosecutions, 539 cases in which the government sought death, 86 death sentences, and 16 executions including the recent 13 in the waning months of the Trump regime. There is a direct causal connection between the vast expansion of capital offenses in the 1994 bill and the horrific increase in federal legal homicides in 2020 and ’21.