Transcript
Into America
Into Resuming Federal Executions
Protesters: (IN PROGRESS) — our streets. (UNINTEL) our streets. Black lives matter. George Floyd.
Protest Leader: What’s his name?
Protesters: George Floyd.
Protest Leader: What’s his name?
Protesters: George Floyd.
Trymaine Lee: The 4th of July weekend became a weekend of protest as people continued to take to the streets, calling for a more humane approach to law enforcement.
Protest Leader: What do we want?
Protesters: Justice.
Protest Leader: When do we want it?
Protesters: Now.
Lee: As much of the public is looking to minimize death at the hands of the law in American society, the Trump administration appears to be ramping it up.
Donald Trump: I’ve always supported the death penalty. I’ve always supported the death penalty. I don’t even understand people that don’t.
Lee: President Trump has been a proponent of capital punishment for years. In the late ’80s, he publicly called for the execution of five teenage boys wrongfully convicted of raping a jogger in Central Park. And last July, his Justice Department under Attorney General William Barr announced that the federal government would resume the killing of federal death row inmates.
While the death penalty has continued at the state level, a federal execution hasn’t been carried out since 2003. In June, the attorney general directed the Federal Bureau of Prisons to schedule the executions of four federal death row inmates. All four men were convicted of killing children. The first execution is set to happen one week from today.
I’m Trymaine Lee, and this is Into America. Today, we’re going into the Trump administration’s move to revive the federal death penalty for the first time in 17 years, despite a mass movement against state violence and a decline in the use and support for capital punishment.
Miriam Gohara: There’s a consciousness about the problems in the criminal legal system.
Lee: Miriam Gohara spent 16 years representing clients sentenced to death, first with the NAACP Legal Defense Fund and then as a specially designated federal public defender.
Gohara: And here, the federal government is deciding to take this step to resurrect the issue of the death penalty at a time when it is neither necessary nor called for.
Lee: Miriam Gohara is now a clinical associate professor of law at Yale Law School. Miriam, thank you so much for joining us today.
Gohara: Thank you.
Lee: You’re a professor at Yale Law School. You spent a number of years representing death sentence clients in post-conviction litigation. But how did you actually get into this work?
Gohara: I always knew I wanted to be a civil rights lawyer by the time I was probably in sixth or seventh grade. And what I thought was that I was going to go and litigate school desegregation cases and affirmative action work. Then when I was in law school, I took a clinical class in which my professor had students working on cases representing children who were accused of crimes in the Boston area.
I realized through that work that all the issues that I was concerned about with inequities in schooling, segregation in housing, disparities in health care were all coming together to put these children into the pipeline for involvement in the criminal justice system. I realized that criminal justice issues are civil rights issues. And that’s how I ended up attracted to criminal justice work.
Lee: And so here we are. And when you consider the death penalty and executions, you know, a lot of people don’t really understand the difference between the state courts and federal courts, let alone state executions and federal executions. Could you break down the difference for us?
Gohara: Most criminal justice in this country happens in the states, and it happens at the local level. So the vast majority of the over 3,000 people who are on death row in the United States are people who have been convicted in local jurisdictions in their states. And what happens is they then have levels of review that are available to them through the state court systems up until the highest state courts.
And then they’re entitled to review by federal courts of any federal constitutional claims. Now, in the federal death penalty, there are 62 people on federal death row. All of them were convicted by the federal government in local federal judicial districts. They were tried, and convicted, and sentenced to death.
Lee: You got my brain movin’ here. So in a capital case that could quality to be tried in a state, how does it end up being routed through the federal courts?
Gohara: I’m really glad you asked that question. A lot of people believe that the federal death penalty is reserved for crimes like treason, or espionage, terrorism. People think that there has to be some sort of crime against the United States’ security interest, and that’s actually not true.
There’s only one person on federal death row who’s convicted of a terrorism-related crime, and the vast majority of people on the row are convicted of crimes like bank robbery, murders associated with drug dealing, murders associated with kidnapping. And these are crimes which in the 1990s the federal crime bill drastically expanded the availability of capital convictions and sentences for a range of punishments.
So most of the people who are on the row now are the legacy of that decision. Even though, you know, a bank robbery could be tried just as easily in state court, so could a kidnapping, murder, so could a, you know, felony murder, arson murder, whatever, what happens is there are ways to federalize the crime.
So, for example, kidnapping can be federalized if even a car that had been used in interstate commerce is used in the crime, and certainly if someone takes someone over state lines. That’s considered a federalizable crime. So the reason that some jurisdictions opt for the federal prosecutions is because they are looking to bring the federal government’s resources to bear on a case for some reason.
And unfortunately in many instances, there is also a racial consideration there. Because, for example, in the city of St. Louis, where there are a number of men on the row who hailed and committed their crimes in the city of St. Louis, city of St. Louis has a very high African American population.
So if someone is tried in that jurisdiction, in the county, they will have a jury pool that is quite diverse. What happens if you federalize a case is that the judicial district for the federal court is much broader and larger than would be available or possible for a local/state prosecution at the county level.
And so, for example, in Eastern District of Missouri (which is where St. Louis sits), the jurors are drawn from many surrounding suburban or rural communities. And in fact, at least two of the three men who were convicted in the Eastern District of Missouri had all-white juries. So this is an example of some of the reasons and considerations that go into federal death penalty prosecutions.
Lee: When the geographic area from which juries are being selected is wider, how do you maintain a defendant’s right to a jury of their peers, right? And you mentioned that, but what happens, you know, when you widen out those boundaries, get outside of St. Louis? Now, you’re in the county. Now, you’re in a different state.
Gohara: It’s very, very challenging. It’s very, very challenging. And so what happens is defense lawyers have to do a lot more work to make sure that the jury pool is representative of the diversity of the jurisdiction in which the crime actually took place.
For these men who are from St. Louis, for example, and their crimes took place in the city, and then they have to draw from a jury pool that includes many people who have opted out of the city for many of the same reasons that we’re concerned about now, right? Redlining, white flight, you know, racial segregation, segregation of schools. They’re fleeing the city, and yet they are called on to pass judgment on offenses that take place in the city.
So this is a real concern because this issue about these executions that are coming up, it’s not just about the fairness of the death penalty against defendants. It’s also the questions of fairness plaguing the federal death penalty generally when we talk about things like the availability of citizens to participate in juries in which the federal government’s pursuing the death penalty.
Lee: When we think about the 13,000, 14,000 homicides that, you know, happen every single year, how are these cases actually chosen for capital punishment?
Gohara: I’m so glad you mentioned that. One of the notorious aspects of capital punishment in the United States is that it has been disparately applied to people who have murdered white victims. This was demonstrated in a notorious case out of Georgia in the 1980s which went all the way to the Supreme Court called McCleskey versus Kemp in which rigorous statistical analysis showed that a person who killed a white person in Georgia was many times more likely to receive a death sentence than a person who killed a Black person in Georgia.
So the disparity wasn’t even about the race of the defendant. It was really about the race of the victim. And that is a problem that has persisted in capital punishment throughout the United States. It is a question of whose body gets valued, right? Which victims are valued?
And this is a problem with capital punishment in the United States that dates back to the era of lynching. Once enslaved people became free, they were no longer property and therefore they were no longer deserving in many jurisdictions of protection. When they were enslaved, they were actually worth more to people than when they were free.
And so when somebody dating back to the immediate post-Civil War era decides they’re going to lynch a Black person, what they’re deciding is, “We are going to send a signal about protecting white communities,” and in particular oftentimes the dynamic was white women and fear of sexual violation by Black men, unfounded fear in most instances.
And that’s where the roots of this disparity in the valuation of which victims “deserve,” quote/unquote, right, the top line punishment that the United States has to offer. And at this time, the top line punishment that the United States has to offer is the death penalty. And so victims are put in a position of believing that, “Unless my family member gets the death penalty pursued on their behalf, then somehow they were less worthy.”
Lee: When was the last federal execution?
Gohara: I believe that was Mr. Louis Jones. He was a veteran. He was a war veteran, and he was African American, and he was executed in 2003. Before him in 2001 the federal government had executed Timothy McVeigh, who had been implicated in the Oklahoma City terrorism bombing, and then a man by the name of Raul Garza.
So of the three executions, two have been men of color, and one has been someone who was convicted of a mass crime which was quite notorious and infamous. And that’s I think pretty emblematic of the federal death penalty unfortunately. You know, of the 62 people who are on federal death row, 35 of them are men of color and 26 are African American men. And so that’s the reality of the federal death penalty in this country.
Lee: And so we have 17 years since the last federal execution. Why haven’t we killed anyone since then?
Gohara: Well, there have been good reasons that cases have been litigated. There have been a number of people who have had death sentences reversed because of various systemic problems with capital punishment and the federal system. And, you know, the Obama administration did not prioritize carrying forward federal executions I suppose with the understanding and belief that there were many other more pressing issues facing the country’s Department of Justice at the time, which, you know, began to examine, for example, Ferguson, Missouri after Michael Brown’s death.
So the Justice Department under the Obama administration was simply putting its resources into things like consent decrees with local police departments. Most people now, or most jurisdictions I should say, are turning against the death penalty. Colorado just abolished the death penalty.
Death sentences in this country have been declining steadily since their high in the mid-1990s. And so the popularity of the death penalty has declined significantly because people have serious concerns about innocent people on death row. They have serious concerns about prosecutorial misconduct.
It costs a lot of money, and people realize and even very conservative jurisdictions realize that the cost is not worth it. So in this sense, I actually think America is in many respects ready to let go of the death penalty. But this Department of Justice for some reason has now decided to make it a priority to carry out these executions, again, at a time when the majority of the country believes that we need some serious criminal legal reforms.
Lee: What do we know about that decision? Is it just politics? What do you think it is?
Gohara: I can’t presume to understand what is motivating the Trump administration or AG Barr in particular to try to resume federal executions at this time. I certainly don’t understand what the rush is. It’s alarming that they’re planning to execute three men days apart from each other.
And it runs the risk that litigation that might be beneficial, or meritorious, or unearth meritorious claims on behalf of these men will be cut short. We’re also in the middle of a global pandemic where attorneys were not permitted to visit their clients at the federal penitentiary in Terre Haute, where most of the people on federal death row are housed.
And so rushing forward with this at this time is inexplicable to me and also I think puts the correctional staff who have to oversee these executions (there are many protocols that have to go into place before an execution), puts them I think at risk both physically and mentally. These executions traumatize the people who have to carry them out.
Lee: So in the meantime, as we’re inching towards these four back-to-back-to-back-to-back executions, there had been a court battle that held them up. In a nutshell, can you kinda explain what was going on?
Gohara: So the issue is that there have been a number of the people on federal death row who have been involved in a lawsuit challenging the lethal injection protocol. So the method and the drugs used for lethal injections, which is the form of execution that the federal government will use to carry these out.
So for a number of years, those lethal injection lawsuits have been under consideration by federal judges in Washington, D.C. And the most recent judge who had an opportunity to examine the record on those decided that there should be no executions moving forward.
Unfortunately, the D.C. Circuit Court of Appeals reversed her decision. And so at this point, there are a lot of questions concerning the safety of the drug used, the method that they’re planning to use. It’s a single drug now instead of a cocktail, which had been used in previous executions.
There have been botched executions at the state level. And so there are still major concerns about the safety of the drug. And obviously when we talk about safety, people might be thinking, “Well, what are you talking about? The person’s gonna be killed with it. So why does it need to be safe?”
But the 8th Amendment prohibits cruelty in the carrying out of a sentence. Now, some of us believe that killing somebody is a cruel and unusual punishment in and of itself. But even if you don’t hold that belief, I think many people would agree that even if you’re going to execute somebody, you don’t want them to be tortured as they are meeting their death.
And unfortunately, some of these botched executions, witnesses who have attended them have described very disturbing physical reactions that appear to suggest that the people who are being executed are in great pain, excruciating pain, and unable to express themselves verbally while the execution’s being carried out. So that’s why the federal court had been permitting hearings, and testimony, and evidence on the issues related to the method of the execution.
Lee: We’ll be right back.
Lee: So let’s talk about these specific cases coming up, these specific federal executions. Four of them have been scheduled at this point, as you mentioned. Can you tell us a little bit about these cases and these men who are scheduled to die?
Gohara: So they’re all white men. And that’s something that I imagine that the federal government will mention whenever issues around the systemic racism of the death penalty in the United States are raised. One of the things that they’ll say is that the first man up for execution, Daniel Lee, is a white supremacist. That’s not true.
Daniel Lee was a misguided young person who, like many misguided young people in this country, fell under the influence of older people. He was a traumatized, neglected, and abused young man who found family with a group of people who at the time espoused white supremacist views. He has long since renounced those views.
The federal government has said that all four of these men are selected for execution in part because they killed children. Daniel Lee is, according to the government’s own evidence, not the person who pulled the trigger on the child, and his more culpable co-defendant actually didn’t get the death sentence. On top of that, the trial prosecutor and the victim’s survivors all have asked that he not be executed. They’ve all made statements saying he was convicted on junk science and that the outcome of his trial was unfair.
Lee: Miriam, there are a lot of people out there who say, “You know what? You’re committing heinous crimes. You’re murdering children,” and some in really despicable ways, and that, “If there is anyone worthy of death, it’s people like this.” Are there crimes that are worthy of the death penalty?
Gohara: Every single one of these crimes was a tragedy. These are not crimes anyone is suggesting one should take lightly. These are not crimes that anyone is suggesting warrant a slap on the wrist. But what one has to ask when looking at capital punishment is whether the person who committed the crime themselves are directly culpable for all of the harm that they experienced well before they ever harmed anybody else.
And we all would agree, I think, that children deserve protection, and children deserve nurturing, and children deserve to be safe. And I’ve never once represented a person who’s been convicted of homicide who was not extremely underprotected, neglected, abused, harmed not only by family members but by institutions that were entrusted with their care.
And that’s a common experience of all four of these men who have been selected for execution. And sometimes those institutions were previous incarcerations. Sometimes they were in juvenile facilities. Sometimes they were in group homes. And that is where we have to begin to shine the light on not what does just this individual deserve, but what role did societal neglect, divestment, inadequate health care, poor education, inadequate support of families, how did all of that play a role in the specific tragedy that the government is deciding to prosecute and carry out a sentence for today.
So it comes down to the question not just what punishment an individual person deserves but what punishment we deserve or we want the government to impose in our names when so much has failed these people well before they ever committed a grievous harm to another family.
Lee: Do you believe there’s any crime worthy of death?
Gohara: I personally am morally opposed to the death penalty. I don’t understand how it helps to kill somebody who has caused harm. I think it just perpetuates a cycle of violence and it produces a level of public consciousness that is in inured to the brutality of our criminal legal system generally. And so personally, the answer is no.
Lee: Where do you think this issue, those who want to end the death penalty, fits in this moment, in this time of greater protest?
Gohara: I think it’s all of a piece. Because what people are talking about when they talk about “defund the police” or “abolish prisons” is, “Let’s think about how we could put all of that money, all of that training, all of those resources, all of that apparatus of arrest, detention, and punishment into something that would promote healthy, vibrant communities, healthy, vibrant people, that would invest in the communities that have been stripped of investment for generations.”
And that is what people are calling for when they’re out marching in the streets on behalf of George Floyd, and Breonna Taylor, and the other people who have been murdered, too many to even name or count at this time on this phone call. And I think you have to consider capital punishment as part of that.
And so for better or for worse, capital punishment has I think fallen out of the public consciousness for some time. When I started doing capital work in the year 2000, capital punishment was at its height in this country and it was very much on the nation’s mind. And I think for many people the death penalty has faded.
But now, the federal government is putting it back on the radar. And that I think cannot be divorced from the current moment that we’re in where people are asking for a redirection of our attention, our money, and the power of our governments to heal, invest, provide support for families, provide support for young people, and have our communities begin to imagine and develop true safety, true security that doesn’t depend on the apparatus of death being handed down by police or on a gurney with a needle in somebody’s arm.
Lee: Miriam, let me ask you this last question. You’ve been doing this work for a very long time. You’ve seen a lot. You’ve seen all the influence. More recently, you’ve seen what’s happening in the streets. Do you believe with all that you know about the system that these four men will be put to death?
Gohara: I really don’t know. I really don’t know. I can’t answer that question. I think that they’re a lot closer to being put to death now than they were when the federal court had stopped their executions. I understand that all four of these men have very dedicated legal teams that are pursuing every avenue possible on their behalf and are continuing to litigate all sorts of issues to try to put a halt to this, but they are certainly several steps closer to being executed today than they were several weeks ago before the government made this announcement and before the Supreme Court decided to let the D.C. circuit’s decision stand.
Lee: Miriam Gohara, thank you so much for your time. These are tough conversations, but I’m glad you joined us to have it. Thank you very much.
Gohara: Thank you so much.
Lee: That was Miriam Gohara from Yale Law School. The federal execution of Daniel Lewis Lee, the first in 17 years, is scheduled for July 13th, one week from today. We’ve reached out to the Department of Justice about their decision to reinstate the federal death penalty, and they pointed us to a June press release in which Attorney General Barr says, quote, “We owe it to the victims of these horrific crimes and to the families left behind to carry forward the sentence imposed by our justice system.”
Into America is produced by Isabel Angel, Allison Bailey, Aaron Dalton, Max Jacobs, Barbara Raab, Claire Tighe, Aisha Turner, and Preeti Varathan. Original music by Hannis Brown. Our executive producer is Ellen Frankman. Steve Lickteig is executive producer of audio. I’m Trymaine Lee. We’ll be back on Wednesday and again on Thursday.