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How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?

By Douglas Berman

The question in the title of this post has been in my head in the wake of last week’s three federal executions and the clear signal sent by five members of the Supreme Court that they will not allow lower courts to get in the way of the Attorney General’s execution plans.  As highlighted in posts last week here and here, the Supreme Court by 5-4 votes vacated a series of lower court stays and injunctions to enable the Justice Department to complete the scheduled executions of Daniel Lewis Lee and Wesley Ira Purkey.  By the end of the week, the pro-execution momentum was so strong that the third person executed, Dustin Lee Honken, apparently did not even pursue any final legal claims up to the Supreme Court.

Recall that it was only a month ago that AG Barr ordered the scheduling of these execution dates for last week (as well as one more set for August 28 for Keith Dwayne Nelson).  This reality suggests to me that AG Barr could, at just about any time for just about any reason, order the scheduling of one or many executions and have them carried our within a month’s time.  There are 59 condemned persons on federal death row (full list here via DPIC), and I suspect at least a couple dozen of these death row defendants have exhausted the standard appellate and post-conviction remedies so that no legal impediments would currently prevent their executions.  Consequently, it would seem their fates now lie squarely and only in the hands of AG Barr and will turn on how he now decides to exercise his discretion in the setting of execution dates.

In DOJ statements concerning the setting of executions dates (here and here), AG Barr has repeatedly stated that “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”  If AG Barr really believes this, will he be actively trying to set more execution dates (perhaps many more) in the weeks and months ahead?  Notably, former Vice President Joe Biden is campaigning for Prez on a promise to “Eliminate the death penalty”: “Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”  If AG Barr really believes that justice calls for executing those now currently on federal death row, should he be seeking to complete as many executions as possible in 2020 just in case a new administration might not want to carry out these sentences in 2021? 

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