Inside Trump and Barr's Last-Minute Killing Spree
PROPUBLICA
12/24/2020
By Isaac Arnsdorf | -
Private executioners paid in cash. Middle-of-the-night killings. False or
incomplete justifications. ProPublica obtained court records showing how the
outgoing administration is using its final days to execute the most federal
prisoners since World War II.
(ProPublica ) - In its hurry to use its final days in power to execute
federal prisoners, the administration of President Donald Trump has trampled
over an array of barriers, both legal and practical, according to court
records that have not been previously reported.
Officials gave public explanations for their choice of which prisoners
should die that misstated key facts from the cases. They moved ahead with
executions in the middle of the night. They left one prisoner strapped to
the gurney while lawyers worked to remove a court order. They executed a
second prisoner while an appeal was still pending, leaving the court to then
dismiss the appeal as "moot" because the man was already dead. They bought
drugs from a secret pharmacy that failed a quality test. They hired private
executioners and paid them in cash.
The unprecedented string of executions is often attributed to Attorney
General William P. Barr, and his role was instrumental: It was Barr's
signature that authorized the use of a new lethal injection drug, his quotes
that trumpeted the execution announcements and his position as attorney
general that holds the ultimate authority in capital cases. (Barr is
resigning effective Wednesday.)
But a ProPublica review of internal government records shows that Barr did
not act alone. The push to resume federal executions for the first time
since 2003 long predates Barr, with groundwork beginning as far back as 2011
and accelerating after Trump took office in 2017. It could not have happened
without the help of Justice Department lawyers; officials at the Bureau of
Prisons; two professors who endorsed the government's injection method;
conservative Supreme Court justices who dismissed final appeals; and Trump
himself, who encouraged the executions and declined to commute them.
Trump and his surrogates don't shy away from this. Throughout the campaign
they highlighted the executions as a contrast to Joe Biden's opposition to
the death penalty, reinforcing Trump's "law and order" message. White House
Press Secretary Kayleigh McEnany even invoked the execution of Daniel Lee,
who fell in with skinhead groups as a teenager and renounced those beliefs
decades ago, to defend Trump after he declined to disavow white supremacists
in the first debate.
"The activation of the death penalty and appearance of being tough on crime
played into the administration's political strategy - the same political
strategy that pushed for separating children and parents and using force
against peaceful demonstrators," said Robert Dunham, executive director of
the Death Penalty Information Center, a nonprofit that tracks executions.
"An administration which is concerned about the rule of law and which
respects the Constitution would have allowed court challenges to proceed and
would not have attempted to carry out executions under a procedure that
could be declared unlawful."
The Justice Department has killed 10 people since July, with three more
executions scheduled before Biden's inauguration. Most every federal agency
is rushing to wrap up unfinished business, cementing policy objectives in
ways that will make them harder for the incoming president to unwind. But
the Justice Department's pressing forward with executions, even after the
election of a new president who opposes them, is uniquely irreversible.
The White House and BOP declined to comment. In a statement, the Justice
Department said: "Seeking the death penalty and carrying out capital
sentences is not a political issue, nor have political considerations
influenced the department's decisions. The death penalty is a law
enforcement and public safety issue, and the department is obligated to
carry forward these sentences regardless of who is the president or the
attorney general."
"Death Penalty All the Way"
A slim and shrinking majority of Americans support capital punishment,
according to public polling. But it remains popular with Republicans,
especially white evangelicals. That coincides with the strongest base of
support for Trump, who, in 1989, famously bought full-page ads in New York
newspapers demanding the death penalty for five young Black and Latino men
who were wrongly accused of attacking a white female jogger in Central Park.
"Death penalty all the way," Trump said at a February 2016 camnpaign event
in New Hampshire. "I've always supported the death penalty. I don't even
understand people that don't."
Until this year, the Justice Department hadn't executed anyone since 2003.
This long interruption was as much practical as legal. A drug that most
states and the federal government used in lethal injections, a sedative
called sodium pentothal, became unavailable because the sole American
manufacturer stopped making it. The drug shortage thwarted the Obama
administration's plan to execute convicted murderer Jeffery Paul. States
began using a similar drug called pentobarbital, and in 2011 federal prison
officials observed several state executions, according to court records.
Shortly after Trump's presidency began, his first attorney general, Jeff
Sessions, wanted to resolve these issues so that BOP could resume
executions. Associate Deputy Attorney General Brad Weinsheimer said in a
January 2020 deposition that Sessions began "conversations with staff and
BOP to move forward on that."
One of the staffers involved was Matthew Whitaker, according to Weinsheimer.
Whitaker, who briefly led the Justice Department between Sessions and Barr,
didn't respond to requests for comment.
BOP made plans to use pentobarbital. But it had also become scarce as
manufacturers shunned its use in executions. States resorted to using
"compounding pharmacies," which mix ingredients for custom-made drugs.
BOP planned to import powdered pentobarbital from a "foreign FDA-registered
facility" but later turned to a domestic bulk manufacturer. It also hired a
compounding pharmacy to create an injectable solution. The government has
guarded vendor identities, since public scrutiny could pressure them to back
out.
A sample of the compounding pharmacy's solution failed a quality test by an
outside lab. But according to Weinsheimer, BOP said the problem was the lab,
not the compound itself, and sent a new batch to a different lab.
BOP also explored using a different drug: the opioid fentanyl. In a March
2018 memo, then-BOP Director Mark S. Inch said BOP found a fentanyl supplier
but warned "there may be negative publicity associated with using a drug to
which so many Americans are addicted."
For unclear reasons, BOP planned to have the executions carried out by two
private contractors, rather than government employees. The government won't
disclose the contractors' names or profession, and it pays them in cash. "If
we didn't pay them in cash," a BOP lawyer said in a deposition, "they
probably wouldn't participate."
"Killing Is Not a Treatment"
BOP officials knew their new drug choice would face resistance in court;
lawyers have argued that pentobarbital would flood prisoners' lungs with
froth and foam, inflicting pain and terror akin to a death by drowning. BOP
worked to fend off those concerns with expert witnesses who would say the
drug was humane.
Finding these experts was challenging because most doctors consider it
unethical to have anything to do with executions. The American Medical
Association and other professional groups prohibit any participation,
including the "rendering of technical advice."
"Doctors are experts in unkilling, we are not experts in killing," said Dr.
Joel Zivot, an anesthesiologist at Emory University who has testified that
lethal injection of pentobarbital simulates death by drowning. "This is why
lethal injection is so problematic. It impersonates a medical act, but it's
not about medicine at all. Killing is not a treatment. An execution chamber
is not an operating room."
The Justice Department would later claim that "BOP consulted with medical
professionals" (plural). That is not exactly true. BOP engaged two expert
witnesses. The first, Craig W. Lindsley, is a professor of chemistry and
pharmacology at Vanderbilt University. He is not a physician or licensed
care provider; he has a Ph.D., not an M.D. In May 2017, Lindsley wrote a
two-page report for BOP stating that pentobarbital will take effect so
rapidly the prisoner wouldn't feel a thing. He concluded, "Of all the
available options and protocols in use today, I believe this protocol to be
the most humane."
Lindsley declined to be interviewed, citing Justice Department instructions.
He did not disclose his compensation, but he was hired through a contract
with a consulting firm called Elite Medical Experts that the Justice
Department paid $22,000 in the same month as Lindsley's report. The
company's CEO, Dr. Burton Bentley II, did not respond to requests for
comment.
BOP's second expert witness was a medical doctor: retired California
anesthesiologist Joseph F. Antognini. Antognini has said he personally
opposes the death penalty as a Catholic. But he also said he believes states
have a right to his advice, comparing it to criminal defendants' right to a
lawyer.
Antognini has not addressed how he squares his testimony supporting
executions with his Hippocratic oath. He did raise ethical considerations
when he was asked to compare lethal injection to poison gas (a comparison
between methods, like the one Lindsley made). "Recommending one method of
execution over another, I guess that's an ethical issue for me," he said in
a deposition.
Antognini's rare position as a doctor vouching for lethal injection has made
him a valuable witness in capital cases, including a Missouri case that
later reached the Supreme Court. Antognini charges $400 an hour, $2,000 for
a deposition, $4,000 per day in court and $2,000 per travel day.
In a deposition in the Missouri case, which involved the same lethal
injection drug, Antognini testified that pentobarbital would make the
prisoner unconscious within 30 seconds and people can't suffer while they're
unconscious. "Can you explain to me how you would have suffering in somebody
who is unconscious?" Antognini said. "I don't see how that can happen based
on my understanding of how all this works."
Yet just a few minutes earlier Antognini had acknowledged, "We don't know
how anesthetics work." Scientists understand how the drugs act in the brain
on a cellular level, he explained, but not how they produce unconsciousness.
The Supreme Court accepted Antognini's pentobarbital testimony. Other courts
have been skeptical, ascribing his views "little or no weight."
Reached by phone, Antognini said he was busy and agreed to talk at a later
time. When that time came, Antognini declined to comment. "I wish you all a
very merry Christmas," he said, and hung up.
"Some Objective Factor"
By the summer of 2019, BOP determined that its drug supply was secure and it
was ready to schedule executions. The agency gave Barr a list of 14
prisoners, out of about 60 on death row, who had exhausted their appeals.
The Justice Department has refused to disclose this list. (Court records
include a list from 2017 with 10 names, but they must not overlap entirely
because two of the prisoners who Barr chose in 2019 were not on the earlier
list.)
Barr decided whom to execute with the help of the then-deputy attorney
general, Jeffrey Rosen (set to become the acting attorney general), and
aides including Paul Perkins and Timothy Shea (who later became acting U.S.
attorney in Washington and now leads the Drug Enforcement Administration).
The officials mulled executing all 14 but decided to start with five.
They chose the five, according to Weinsheimer's deposition, for the same
reason that Barr would publicly announce on July 25, 2019: They were
"convicted of murdering, and in some cases torturing and raping, the most
vulnerable in our society - children and the elderly."
"There was an effort to find some objective factor in looking at the 14,"
Weinsheimer said. "This was an aggravating factor that seemed to apply."
In fact, that wasn't true. Barr's summary of the case of Daniel Lee
incorrectly said he "murdered a family of three, including an 8-year-old
girl." The undisputed evidence was that Lee refused to kill the girl, so his
co-defendant did. The co-defendant was sentenced to life in prison, while
Lee was sentenced to death.
Weinsheimer said he didn't know if there were other death row inmates who
murdered children or the elderly. There were, according to a review by
ProPublica.
Barr's announcement also justified the executions on the basis that "we owe
it to the victims and their families." This also was not true in Lee's case:
Family members of Lee's victims have publicly come out against executing him
(as have the prosecutor and judge). The families of the four other
prisoners' victims supported the executions. In any event, the Justice
Department didn't consult victims' family members when deciding who to kill,
Weinsheimer said in his deposition.
The Justice Department also didn't review the prisoners' physical or mental
health as part of its selection, according to Weinsheimer. One of the five,
Alfred Bourgeois, had an IQ between 70 and 75, and his lawyers argued he is
intellectually disabled. Another, Wesley Purkey, suffered from
schizophrenia, dementia and Alzheimer's disease, which his lawyers said made
him unable to understand the reason for his execution.
Weinsheimer said the Justice Department decided to schedule the executions
in the order that the prisoners were convicted, with the oldest first.
However, they were not the oldest capital convictions, according to
ProPublica's review.
As for the executions' timing, Barr's announcement did not explain why,
after a 17-year hiatus, the first three executions were scheduled within one
week of each other. BOP officials voiced concern that these back-to-back
executions would put more stress on their staff, the agency's lawyer said in
a deposition. (After a 2014 lethal injection in Oklahoma went gruesomely
awry, the state's investigation concluded that one contributing factor was
having two executions scheduled that day.) Nevertheless, BOP's lawyer said
the agency booked three executions in one week because of "guidance from the
attorney general." Weinsheimer denied that Barr gave a "direction" on how to
schedule the executions.
"Moot"
Even prisoners who have exhausted their post-conviction appeals can go back
to court to try to stop their execution once a date is set. A federal judge
in Washington put the executions on hold in November 2019. The appeals court
disagreed in April. Barr swiftly rescheduled the executions for Lee, Purkey
and Dustin Honken, in a span of four days in July. In this announcement,
Barr cut two from the original five (Bourgeois and Lezmond Mitchell), and
added a new prisoner, Keith Nelson. The unifying theme, he said, was
"murdering children," repeating his inaccurate summary of Lee's crime.
On the day Lee was supposed to be executed, the judge in Washington ordered
a new injunction. The appeals court declined to intervene, so the Justice
Department went to the Supreme Court.
The Supreme Court's conservative majority has been consistently hostile to
last-ditch reprieves in capital cases. "Courts should police carefully
against attempts to use such challenges as tools to interpose unjustified
delay," Justice Neil Gorsuch wrote in a 2019 case (the Missouri execution
that featured Antognini's testimony).
The conservatives have been equally unsympathetic to objections to lethal
injection, considering that the court never found a constitutional problem
with "traditionally accepted methods" such as hanging, electrocution and
firing squad. "The Eighth Amendment does not guarantee a prisoner a painless
death," Gorsuch wrote in the Missouri case, "something that, of course,
isn't guaranteed to many people, including most victims of capital crimes."
Early on July 14, five justices ruled that Lee's execution could go ahead,
saying that he had "not made the showing required to justify last-minute
intervention." Technically, Lee's death warrant had expired at midnight, but
the government issued a new same-day notice and went ahead with the
execution around 4 a.m. Lee's lawyers protested that there was still a
separate court order that the Supreme Court hadn't addressed, so officers
left Lee on the gurney while government lawyers worked to wipe out that last
obstacle. "That cautious step, taken to ensure undoubted compliance with
court orders, is irreconcilable with the suggestion that the department
'rushed' the execution or disregarded any law," Rosen, the deputy attorney
general, wrote in a July op-ed. Less than an hour after a federal appeals
court granted the government's request, Lee was dead.
"Today, Lee finally faced the justice he deserved," Barr said in a
statement.
Later that day, at a White House press conference, Trump referred to Lee's
execution as part of his attack on the Democratic Party platform. "Abolish
completely the death penalty," he said. "You know what happened today with
regard to the death penalty."
Events repeated the next day. Purkey's execution was set for July 15. Again
after 2 a.m., a sharply divided Supreme Court lifted the outstanding court
orders. Purkey's lawyers rushed to federal district court for a new
emergency stay on the basis that his Alzheimer's and schizophrenia made him
unable to understand his sentence. The judge said the execution should pause
while he considered the motion, which he then denied, chastising Purkey's
lawyers for "procedural gamesmanship."
"Despite the risk of irreparable harm to Mr. Purkey, the balance of equities
do not weigh in his favor," wrote the judge, James R. Sweeney II, who was
appointed by Trump in 2017. Sweeney's brief order did not specify what
equities he weighed, but the government had argued that Purkey's sentence
had already been upheld multiple times.
As Purkey's lawyers rushed to appeal, BOP went ahead with placing an IV in
Purkey's arm. He was dead before the appeals court made its ruling. The
court later dismissed Purkey's appeal as "moot" because he was already dead.
Honken died the next day, the third that week.
"A Personal Interest"
As prisoners desperately fought the government's execution plans in court,
they argued that overdosing on pentobarbital would be so excruciating that
even death by firing squad would be less painful. Justice Department lawyers
chafed at the suggestion. In response, they said firing squads were "more
primitive" than lethal injection, and reintroducing them would be a
"regressive change."
Two weeks later, however, the agency took steps to do just that. The Justice
Department proposed a regulatory change to authorize execution methods
besides lethal injection, including firing squads, which remain legal in
three states. "This proposed rule would provide the federal government with
greater flexibility to conduct executions in any manner allowed by federal
law," the agency said. "The proposed rule would therefore forestall
potential future arguments by prisoners in litigation."
The proposal made other tweaks to the department's regulations to address
issues raised in litigation - not exactly admitting error, but tacitly
acknowledging cracks in the government's legal foundation.
While the proposal was formally signed by Barr, its point person was
Laurence E. Rothenberg, a deputy assistant attorney general in the Office of
Legal Policy. Though he is a career employee, Rothenberg's LinkedIn profile
picture shows him standing proudly with Barr, and he has staked out a public
position supporting the death penalty.
In a 2004 law journal article (also published by the conservative Federalist
Society), Rothenberg described the death penalty as "intrinsically just." He
also defended executing juvenile offenders against claims that doing so
violates international law.
In another article, from 2006, Rothenberg and a Justice Department colleague
attacked common critiques of the death penalty. "The extent of racial
disparities in capital cases in the United States has been vastly
exaggerated," they wrote.
Rothenberg has said that his criminal justice views are shaped by a family
tragedy. "I also have a personal interest in, and commitment to, this work,
as the son of a murder victim," he said in 2009 congressional testimony
about a victims rights law. In 1974, Rothenberg's parents were shot, his
father fatally, on a trip to the Virgin Islands. The shooter was convicted
of murder and sentenced to life in prison.
The regulation became final the day after Thanksgiving.
"It Didn't Go Well"
For the next round of executions, Barr's announcement simply said that the
two prisoners, William LeCroy and Christopher Vialva, were "convicted of
murder." He gave no other reason or explanation for their selection.
Earlier this month, the Justice Department executed Vialva's co-defendant,
Brandon Bernard. Bernard was 18 at the time and did not pull the trigger.
The prosecutor and five of the nine all-white jurors who convicted Bernard,
who is Black, have since said his life should be spared. The reality star
Kim Kardashian tried unsuccessfully to convince Trump to commute his
sentence.
At the federal death row facility in Terre Haute, Indiana, the inmates are
allowed to leave each other bequests, according to The New York Times.
Alfred Bourgeois received his friend Bernard's wrist watch for the single
day before it was his turn to die.
Bourgeois was strapped to a gurney in the middle of a green-tiled room, an
IV in his arm. As the pentobarbital flowed, Bourgeois' stomach heaved and
popped, according to George Hale, a public radio reporter who witnessed the
execution. The apparent gasping for breath was consistent with how lawyers
have described the drowning sensation that the injection could cause.
Bourgeois' death took 28 minutes, almost twice as long as Bernard's. Hale
said, "If Alfred Bourgeois was suffering that night, he suffered for a long
time."
There are three more federal executions scheduled in January - eight, six
and five days before Biden's inauguration.
Isaac Arnsdorf covers national politics. His reporting on President Trump's
agenda for veterans won the Sidney Hillman Foundation's Sidney Award and the
National Press Club's Sandy Hume Award, and was an honorable mention for the
Toner Prize for Excellence in Political Reporting. Before joining ProPublica
in 2017, he covered lobbying and campaign finance at Politico. He previously
worked for Bloomberg News.
Via ProPublica
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