People For the American Way

Trump Justices Help Authorize Immediate Execution to Help Carry Out Trump-Barr Plan to Maximize Executions Before Trump Leaves Office: Confirmed Judges, Confirmed Fears

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Trump Justices Help Authorize Immediate Execution to Help Carry Out Trump-Barr Plan to Maximize Executions Before Trump Leaves Office: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett appeared to cast deciding votes to lift a district court stay and authorize the immediate execution of a Black man who has claimed his conviction was tainted by racial discrimination. The execution was the first of several that the Trump-Barr Justice Department is racing to complete before Trump leaves office. The November 2020 order was in Barr v. Hall.

Following a 17-year hiatus during both Republican and Democratic Administrations in which no federal prisoners were put to death, the Trump-Barr Justice Department began carrying out federal executions again in 2020. In fact, DOJ has executed more people this year than during the last half century. Since President-elect Biden has made clear his opposition to the federal death penalty, the Trump-Barr DOJ has scheduled five federal executions to take place before Trump leaves office on January 20.

Orlando Hall had been scheduled in late September for execution on November 19. Hall, who is African American, has claimed that his conviction was tainted by racial discrimination, because he was tried by an all-white jury, four Black prospective jurors were excluded, and one of the prosecutors was later found to have excluded jurors because of race in a different case. A district court judge granted a stay of Hall’s execution on November 19 because of additional allegations that the execution violated federal law because the government was using a lethal drug for which it had not received a prescription. The Justice Department immediately tried to get the Supreme Court to lift the stay.

On the night of November 19, the Supreme Court majority did exactly that without explanation, and Hall was put to death shortly after the Court’s order. The Court issued only a one-sentence order with no opinion, and the three remaining moderate justices (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) noted their dissents. Although there is no written record of who joined the order, it is extremely unusual for a justice  not to note a dissent from such an order, so it appears that it was a 6-3 order in which Trump justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett provided deciding votes.

According to the Death Penalty Information Center, Hall’s case was the first time since 1889 that the federal government has executed someone during the lame-duck period after an election and before a new president takes office. Based on the actions of the Trump-Barr DOJ in the closing months of the Trump presidency and the composition of the current Supreme Court majority, it is unlikely to be the last.