What will President Joe Biden do to save the life of Lisa Montgomery?
Depending on court decisions in the next few days, President-elect Joe Biden may face his first reckoning with his opportunistic past and his newfound support for progressive change. Within days of assuming office, the federal government that he administers intends to put Lisa Montgomery to death by lethal injection. Since July, President Trump and Attorney General Barr have speeded up federal executions of 10 inmates. Montgomery will be the first woman executed by the federal government since 1953.
This federal killing spree by Trump and Barr lays bare the dirty politics of capital punishment in the U.S. launched in July, these federal executions were nothing more than red meat tossed to Trump’s base supporters. In 2020, the federal government executed more prisoners than all 50 states combined. After Trump’s resounding loss of the popular vote and the vote in the Electoral College, he has killed three more prisoners. The last lame-duck president to conduct a federal execution was Grover Cleveland in 1889. Of the 10 executed by Trump and Barr, four were Black. About 13% of Americans are Black; 40% of Trump’s executed prisoners were Black men. This reflects the systemic racism of the death penalty. Historically, 34% of all executed prisoners are Blacks. Currently, 42% of federal and state prisoners on death row in the U.S. are Black.
As part of the Democratic Party platform, Biden is committed to ending federal executions through executive and legislative actions. His platform also says he will encourage states to follow suit. However, he has yet to say what he will do to save Montgomery’s life. She committed a horrific crime. She murdered Bobbie Jo Sennitt, who was pregnant. Montgomery cut her open and removed the fetus. The baby survived. As well documented by Rachel Louise Snyder in The New York Times (Dec. 18), Montgomery was a victim of repeated beatings and rape as a child and teen. Montgomery has eight types of mental illness, including traumatic brain injury, psychosis and dissociative disorder. Incompetent defense counsel failed to convince the jury that her mental disorders mitigated her crime. By any reasonable interpretation of current law and case decisions, Lisa Montgomery does not belong on death row.
Biden was one of the sponsors of the infamous Violent Crime Control and Law Enforcement Act of 1994. The bill expanded the federal death penalty to 60 crimes. Some of the inmates executed by President Trump were put to death under the expanded provisions for death in Biden’s bill.
One charitable explanation is that Biden’s views have “evolved” since 1994. Apologists for the law cite the fact that many Black politicians in 1994 also supported the bill. A less charitable view, and one that closely matches reality, is that Biden is now what he was then: a political opportunist.
In 1994, supporting the death penalty was a no-brainer. The number of U.S. murders peaked in 1991 at 24,700. Terrified that the GOP would brand Democrats as weak on crime, supporting the death penalty allowed “moderate” opportunistic Democrats to take a tough-on-crime stance. Former President Bill Clinton once opposed the death penalty until he saw political advantage in supporting it. In 1992, Clinton left the Presidential campaign trail to return to Arkansas where he served as governor. He wanted a photo-op while overseeing the execution Ricky Ray Rector, a Black man. Because of an attempted suicide, Rector was severely brain-damaged. He saved dessert from his last mean for “later,” not comprehending that he was about to die. But Bill Clinton did get his tough-on-crime photo-op.
Of course, we now know—and we knew then—that the death penalty and executions do not deter murder, are more expensive than life in prison, and do not provide closure for families of murder victims. But the death penalty did give politicians of all stripes a popular fix on violent crime. The death penalty is a cynical, ineffective bandage slapped on top of hemorrhaging systemic racism, income inequality and child abuse in America.
From 1994 to 2019, Biden’s support for the death penalty showed no signs of “evolving.” In June 2019, Politico reported that Biden had seemed to “soften” his support of capital punishment in a speech to New Hampshire progressives. There is no evidence that a flaming bush in the desert directed Biden to a more enlightened position. So what has changed?
The answer is that the American people have changed. This is especially true for Democrats. Gallup polled Americans in late 2019, asking which they preferred for murderers: life in prison without any possibility of parole or the death penalty. The vast majority (60%) favored life in prison. Only 37% favored the death penalty. This reflects a pattern of historical decline of public support for capital punishment among Americans. Politicians like Biden are simply catching up with the evolving values of ordinary Americans.
Biden has unquestioned authority to commute Montgomery’s death sentence to life without parole. He can do the same for the other 61 people on federal death row. Biden won the November election by holding together a coalition of progressive and centrist voters. Lisa Montgomery’s execution is Biden’s first acid test of his newfound progressive agenda. This is Biden’s first opportunity to shed his opportunist baggage and do the right thing. The U.S. is the only western democracy that retains capital punishment. The whole world is watching.
David M. Dozier is author of the novel, The California Killing Field, and professor emeritus in the School of Journalism & Media Studies at San Diego State University.