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      Revealed: majority of people charged in Capitol attack aren’t in jail

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      At least 70% of people charged in the Capitol riot have been released as they wait for trial, according to a Guardian analysis.That high pretrial release rate stands in stark contrast with the usual detention rates in the federal system, where only 25% of defendants nationwide are typically released before their trial.Eric Munchel, known as “Zip Tie Guy”, who was allegedly photographed wearing tactical gear and carrying wrist restraints in the Senate chamber, was released in late March, along with his mother, after an appeals court questioned whether he posed any danger outside the specific context of 6 January.Richard Barnett, the Arkansas man photographed with his foot on Nancy Pelosi’s desk, was released in late April, nearly two months after screaming during a court hearing that “it’s not fair” that he was still in custody when “everybody else who did things much worse are already home”.Multiple alleged members of the Proud Boys and the Oath Keepers, two groups facing the most serious conspiracy charges related to their alleged plans for violence, have been released before trial, though some prominent leaders in these groups remain in custody.The disparity in pretrial detention rates highlights what legal experts said was a broader development in the 6 January cases: the likelihood that a substantial swathe of the alleged rioters may not serve any prison time at all, even if they are convicted or plead guilty.Many Capitol defendants are being released ahead of trial because they are facing relatively low-level charges, experts said, though other factors, including racial bias, may also play a role.“I’m both surprised and not surprised. Most of these people are white,” said Erica Zunkel, associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School. “The majority of people in the federal system are people of color.”The US attorney’s office for the District of Columbia, which is prosecuting the cases, said in a statement that the alleged Capitol rioters were facing very different kinds of charges than most people in the federal system.“Comparing the per cent of January 6 defendants detained with the overall federal average is comparing apples and oranges,” a spokesperson for the office said. “The majority of federal defendants are charged with immigration or drug crimes, both of which are typically accompanied by detention. The January 6 defendants are charged with a variety of obstruction, assault, and trespassing charges. The comparison makes no sense.”Zunkel, a former federal defense attorney, argued that it was absolutely fair to ask why prosecutors and judges were making different detention decisions for drug and immigration cases than for the people charged with participating in the 6 January attack, who are more than 90% white.More than 96% of the people charged with federal immigration crimes are Hispanic, and more than 70% of those charged with federal drug crimes are Hispanic and Black, Zunkel said, citing federal sentencing data.“We have a problem with our system, something has gone wildly wrong, if we have a 75% detention rate nationwide, and we have a subset where we have a more than 70% release rate,” she said.Zunkel and a colleague, Judith P Miller, both former federal defense attorneys, said that the level of skepticism and care federal judges were bringing to the decision of whether Capitol defendants were truly dangerous enough to keep incarcerated was not at all the norm.The problem, they said, was not that judges were making the wrong call in releasing Capitol defendants, but that judges were not making similar calls for the majority of people in the federal system.“For my Black and brown clients, it feels like they have to meet such an impossibly high threshold to be released,” Miller, a University of Chicago law professor, said. “The kind of sensitivity the courts have shown to the capitol defendants’ claims for relief – I wish some of that sensitivity would be shown more broadly.”The US attorney’s office for the District of Columbia declined to confirm how many Capitol defendants were currently in pretrial detention, noting that the number “has the potential to fluctuate frequently based on ongoing detention decisions”.By mid-May, at least 440 people had been arrested on charges related to the 6 January Capitol breach, according to the justice department, including at least 125 charged with assaulting or impeding law enforcement.Of 398 defendants listed on the justice department’s Capitol breach case site as of 10 May, at least 330 were listed on the site, or in federal court records, as released from custody. At least 56 of those defendants remained in detention.The precise number and percentage of Capitol defendants who are released versus in detention changes often, as new alleged rioters are arrested, others secure release, and a few risk re-arrest for violating the conditions of their release. The number and status of cases on the justice department’s Capitol breach website also lags behind court filings.But the broader trend in the cases is clear: the overwhelming majority of Capitol defendants are not being detained ahead of trial.Based on their likelihood of flight risk or danger to their communities, some of the Capitol defendants have been required to meet more intensive release conditions, including GPS monitoring, curfews or home detention, and limitations on their access to the Internet or social media, according to court records.Many of the Capitol defendants are facing only relatively low-level federal charges, such as entering a restricted building or disorderly conduct within a restricted building. A Washington Post analysis of court documents in mid-May concluded that 44% of the Capitol defendants faced only misdemeanor charges.Some of the federal judges hearing the Capitol cases have expressed concern that certain defendants may have already spent more time in custody than they are likely to face as a punishment for their crimes.“For those who end up only charged with misdemeanors, it’s likely that they won’t serve any substantial time, or potentially no time at all,” said Mary McCord, an expert on extremism who served for nearly 20 years as a prosecutor in the US attorney’s office in Washington DC. “It’s quite possible if they were to plead guilty, they would be sentenced to whatever time was served, or 30 days.”There is a tension between the dramatic collective effect of the 6 January mob, which halted the official certification of Biden’s election as president and threatened the legitimacy of American democracy, legal experts said, and what federal prosecutors can prove that individual people did.“The irony is that we have so many laws – so many things are illegal – it’s somewhat surprising that they’re not able to find charges that are more serious,” Zunkel said.Some more serious potential charges, like conspiracy or seditious conspiracy, would require evidence of prior agreement to commit a crime that appears to be lacking for many participants in the chaotic Capitol mob, said Daniel Richman, a Columbia University law professor and former federal prosecutor.“When you look at each individual, what they did might amount to destruction of property or illegal entry, and that’s in all likelihood what they’ll be charged with, but the larger dimension of their participation in a massive attack falls by the wayside,” Richman said.Part of the current dynamic of the Capitol cases, Richman cautioned, was seeing the very normal limitations of the criminal justice system come up against the heightened expectations of a public who watched the shocking violence of 6 January unfold in real time.“Criminal prosecutions never end in these glorious accountability moments where everyone is satisfied that right was done,” Richman said.For many Capitol defendants facing these lower-level charges, justice department prosecutors did not even attempt to keep them detained ahead of trial, and they were quickly released on standard conditions.Federal prosecutors did fight for months to keep other defendants in custody, with federal judges eventually overruling them, particularly after the pivotal appeals court ruling questioning the detention of Munchel, the alleged “Zip Tie Guy”, and his mother, who both gave interviews talking about their willingness to engage in violence to further their beliefs but were not accused of any specific acts of violence or vandalism as they roamed the Capitol, wrist restraints in hand.“My guess is the judges who decided to release some of these folks on bond were thinking: on January 6, there were an ideal storm of conditions for these people to commit a crime, and now there aren’t those ideal conditions any more, so they’re not likely to do it again,” said Wanda Bertram, a communications strategist at the Prison Policy Initiative, a non-profit that focuses on the harms of mass incarceration.But the same logic could be applied to low-level crimes: “investing in people’s communities” to “create different conditions” that would make it unlikely for them to repeat the same behavior, Bertram said.“The treatment of the people who are involved in the Capitol riot should show us what is possible and what is logical in terms of how to treat people in the future.”Former prosecutors defended the justice department’s work in the Capitol cases, and said that the continuing effort to identify and arrest a large proportion of the hundreds of people who stormed the Capitol was a massive, demanding endeavor, and showed how much the government wanted to ensure that there were real consequences for participating in the attack.“They’ve been aggressive, and continue to be, in trying to find everybody who was at that riot,” said Laurie Levenson, a professor at Loyola Law School. “For the attorney general, numbers matter. It really matters that hundreds of people are held responsible. That’s the message to people: you don’t want to game the system.”“I think they pretty much want on everyone’s records that they were responsible for these actions,” Levenson added. “It means something that these people are going to walk away with even a federal misdemeanor record. That has an impact on their employment, on their life, on their situation in their community. Even if they just get probation, they’re going to have to watch their step.” More

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      Trump’s revenge: tilting of supreme court to the right poised to bear fruit

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      Donald Trump’s presidency was capricious and chaotic, but there was one issue on which he focused with laser-like discipline: tilting the judiciary to the right.Now America is about to reap that harvest. In the next year the supreme court is set to consider healthcare, voting, LGBTQ rights, guns and, most explosively, abortion. The cases provide a vivid demonstration of how, after being rejected at the ballot box, conservative partisans could push their agenda through the courts instead.“Next year’s supreme court term is shaping up to be the revenge of Donald Trump,” said Edward Fallone, an associate professor at Marquette University Law School.It was always said that, long after the tweets and leaks were forgotten, Trump’s judicial legacy would endure. He appointed 234 judges, including 54 appellate judges, outpacing Barack Obama’s first term total of 172 and George W Bush’s 204.The blitz included three supreme court justices, most recently Amy Coney Barrett, a devout Catholic, who replaced Ruth Bader Ginsburg following the liberal linchpin’s death, handing conservatives a 6-3 majority.Just after Barrett’s arrival and Joe Biden’s victory, the court heard arguments in a new challenge to Barack Obama’s signature healthcare law, the Affordable Care Act. A decision is expected soon. If the court’s conservatives overturn Obamacare, they would succeed where Republicans in Congress failed.That outcome is seen as unlikely, but the right is expected to fare better in two cases brought by Democrats contending that voting restrictions in Arizona are racially discriminatory. A ruling, expected soon, could make it harder to challenge dozens of other Republican-led voting measures in the wake of last year’s election.Another looming case involves a Roman Catholic adoption agency in Philadelphia that argues it is entitled to discriminate against potential foster parents on the basis of sexual orientation. Arguments at a hearing last November again implied that the conservative majority will rule in favour of the agency.The supreme court’s 2020-21 term offers further flashpoints. The nine justices will review a challenge to New York’s restrictions on people carrying concealed handguns in public. It will be the court’s first major gun rights case in more than a decade, even as Biden pushes for Congress to tackle America’s firearm violence epidemic.And, it emerged this week, America’s highest court will also consider a bid to revive a Republican-backed state law that would ban abortion after 15 weeks of pregnancy. The eventual ruling could undercut the seminal 1973 Roe v Wade decision that enshrined a woman’s right to abortion nationwide.Fallone believes the move is a sign that the court’s conservatives are no longer worried about Chief Justice John Roberts casting a decisive vote against them. “The only reason to take this case would be to overturn Roe,” he said. “They’re pretty confident they can succeed without it.”Despite holding the White House and both chambers of Congress, Democrats have few options in the short term. Fallone, who unsuccessfully ran for the Wisconsin supreme court as a Democrat, added: “I don’t really think realistically that there is much that the Democrats can do about the court. The conservative majority is going to be emboldened next term.“They’ve been waiting for that moment for a long time and it’s finally going to arise. The second amendment case involving the New York law against carrying firearms openly in public is also setting up next term to be a big win for conservatives potentially as well.”A commission established by Biden to study potential changes to the supreme court held its first meeting on Wednesday. It has six months to issue a report on reforms including possibly expanding the number of justices to 13, an idea championed by some liberal activists and Democratic members of Congress.Christopher Kang, co-founder and chief counsel of the pressure group Demand Justice, said: “From the gun violence prevention case to the abortion case, the Republican super majority on the supreme court is showing that it is full steam ahead with its ultra-conservative agenda regardless of what the country thinks.“Ultimately we have to grapple with the need for structural reform of the supreme court. We’re just starting to build the education and activism around this and gaining momentum in Congress. As the supreme court continues to take these grossly political steps, unfortunately they’re going to make the argument for us about why the supreme court needs to be reformed.”A bill to expand the court was introduced in Congress last month but Democratic moderates have expressed scepticism. Kang insisted: “Sooner or later, this is going to be a question that comes to the Democrats about how we’re going to preserve our democracy. The need to add supreme court seats, regrettably, is going to become very clear within the next couple of years.”Republicans have opposed the idea of expanding the number of justices, sometimes described as “court packing” and last seriously attempted by the Democratic president Franklin Roosevelt in the 1930s. They deny that they are using the courts as a workaround to subvert democracy and impose a form of minority rule.Curt Levey, president of the rightwing advocacy group the Committee for Justice, said: “I don’t see Biden’s narrow victory as an endorsement of abortion on demand, which is pretty much the current regime or, for that matter, as an endorsement of draconian restrictions on handguns. So I guess I don’t really see it as being out of step.“I think the opposite was true for many decades where the supreme court represented elite opinion that was out of touch with the majority. Perhaps for the first time, the supreme court is more in line with the American people generally. I certainly understand why the left is upset that they’ve lost an institution that helped them to implement their agenda.”In fact Biden won the national popular vote by 7m ballots. About six in 10 Americans believe abortion should be legal in all or most cases, according to the Pew Research Center, although the partisan split over the issue has deepened in recent years.Meagan Hatcher-Mays, director of democracy policy at the grassroots movement Indivisible, said: “Most people in the United States think that abortion should be legal and easy to access so it’s not really a political winner for Republicans, especially among suburban women, to go at women’s bodily autonomy like this legislatively.“If the courts do it, then they get what they want and they don’t face any blowback for it because it wasn’t them that did it. They didn’t pass a law that says abortion is bad; they got the supreme court to do it. And so that’s what this 40-year project has been about: stacking the courts with people that are conservative loyalists and who will do the unpopular dirty work of Republicans that they can’t get done legislatively.”It is a very long game. A recent article in the Atlantic magazine noted that Trump’s judges will not reach the peak of their influence until the early 2040s, when they are likely to lead nearly every appeals court at the same time.Hatcher-Mays warned: “The lower courts also have been hijacked, frankly, by people who are loyal not just to conservative values but Republican political outcomes. That was Trump’s big legacy. Not every case goes to the supreme court; a lot of them are decided at the lower level; a lot of those people that he picked are Trumpian-type judges. So that’s really, really scary.” More

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      George Floyd: will Derek Chauvin’s guilty verdict change US policing?

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      Oliver Laughland, the Guardian’s US southern bureau chief, covered the trial of former police officer Derek Chauvin, who was found guilty of the murder of George Floyd on Tuesday – a landmark moment in US criminal justice history. Oliver looks at what the verdict means for America

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      Former police officer Derek Chauvin has been convicted of murder for killing George Floyd by kneeling on his neck for more than nine minutes, a crime that prompted waves of protests in support of racial justice in the US and across the world. The jury swiftly and unanimously convicted Chauvin on Tuesday of all the charges he faced – second- and third-degree murder, and manslaughter – after concluding that the white former Minneapolis police officer killed the 46-year-old Black man in May through a criminal assault, by pinning him to the ground so he could not breathe. Anushka Asthana talks to the Guardian’s US southern bureau chief, Oliver Laughland, who has been in Minneapolis covering the trial. He discusses the case and whether the verdict will usher in police reforms. On Wednesday, US attorney general, Merrick Garland, announced that the Department of Justice would investigate the practices of the Minneapolis Police Department. More

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      Engineer who stole trade secrets from Google among those pardoned by Trump

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      Sign up for the Guardian’s First Thing newsletterIn his final hours of office, Donald Trump pardoned a former Google engineer who was convicted of stealing trade secrets from the company before taking up a new role with competitor Uber.Anthony Levandowski, 40, had been sentenced in August 2020 to 18 months in prison after pleading guilty to inappropriately downloading trade secrets from Google’s self-driving car operation Waymo, where he was an engineer.The surprise pardon was remarkable for its star-studded list of supporters and its justification. “Mr Levandowski [pleaded] guilty to a single criminal count arising from civil litigation,” read the White House announcement. “Notably, his sentencing judge called him a ‘brilliant, groundbreaking engineer that our country needs’.”The single guilty count was the result of a plea bargain; the engineer was originally charged with 33 counts of theft and attempted theft of trade secrets. And the sentencing judge, William Alsup, described Levandowski’s theft as “the biggest trade secret crime I have ever seen” and refused the engineer’s request for home confinement, saying, it would give “a green light to every future brilliant engineer to steal trade secrets. Prison time is the answer to that.”Levandowski had not yet begun his prison sentence due to the Covid-19 pandemic. A hearing on the timing of his prison sentence had been scheduled for 9 February.Levandowski was a leader in the race to develop self-driving cars. He made a name for himself in the autonomous vehicle space after building a driverless motorcycle in a contest organized by the Pentagon’s research arm, Darpa, in 2004.Levandowski went on to found his own startup, 510 systems, which was acquired by Google in 2011. At Google, he helped to develop driverless cars until 2016. Upon leaving the company and while negotiating a new role at Uber, he later admitted, he downloaded more than 14,000 Google files to his personal laptop.Whether any secrets from those files made their way into Uber’s self-driving technology became the center of a bitter legal battle between the two tech giants that resulted in a $245m settlement for Google’s self-driving spin-off, Waymo, and criminal prosecution for Levandowski.The White House cited the support of 13 individuals in its pardon statement, including the billionaire Facebook board member Peter Thiel and several members of his coterie: Trae Stephens and Blake Masters, who have both worked for Thiel’s various investment firms, and Ryan Petersen, James Proud and Palmer Luckey, who have all received investments for startups from Thiel.Thiel donated to Trump’s 2016 campaign, spoke at his nominating convention, and gave a press conference in which he argued that the then-candidate’s calls for a ban on immigration by Muslims should not be taken “literally”. In 2016, as Thiel was growing more engaged with the pro-Trump far right, Thiel met with a prominent white nationalist, BuzzFeed News reported. As Trump’s presidency floundered, Thiel distanced himself from his former support.Luckey is best known as the founder of Oculus, the virtual reality headset startup that was acquired by Facebook for $2bn in 2014. His politics came under scrutiny during the 2016 campaign when it was revealed that he was funding a group dedicated to “shitposting” and anti-Hillary Clinton memes, and he was pushed out of Facebook in 2017. In July, his new startup, Anduril Industries, won a five-year contract with US Customs and Border Protection to provide AI technology for a border surveillance.Other supporters of the pardon include the former Disney executive Michael Ovitz and three of Levandowski’s attorneys.Levandowski was one of 143 people to be granted clemency by Trump on his last day in office. The former president has pardoned 70 people and commuted the sentences of a further 73 people. The recipients include Trump’s former senior adviser Steve Bannon, rappers Lil Wayne and Kodak Black, the Detroit mayor Kwame Kilpatrick and scores of others.The White House said Levandowski had “paid a significant price for his actions and plans to devote his talents to advance the public good”.Since his legal troubles began, Levandowski has founded a new self-driving car company and established a church focused on “the realization, acceptance and worship of a Godhead based on artificial intelligence (AI) developed through computer hardware and software”. The website for the Way of the Future Church appears to have become defunct at some point in March or April 2020.Reuters contributed to this report. More

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      Death penalty kills belief that people can change | Letters

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      Austin Sarat writes powerfully about the Trump administration’s rush to execute federal prisoners (Trump is spending the last days of his presidency on a literal killing spree, 15 December). In the past weeks, it was Brandon Bernard and Alfred Bourgeois. Next in line are Lisa Montgomery, Corey Johnson and Dustin Higgs.
      Joe Biden proposes to introduce legislation to abolish the federal death penalty. This will take time and its success is not guaranteed. But there is something he could do as soon as he takes office. This is to use his clemency power to spare the lives of the 50 or so individuals who will remain on federal death row. I estimate that it would take him four minutes to sign the required notices of commutation. This would ensure that the trail of bodies Sarat describes could not grow any longer.
      Is it too much to hope that Biden will set aside the time to do this during his first 100 days? It would be a magnificent gesture. Prof Ian O’Donnell School of Law, University College Dublin
      • When my friend, Brandon Bernard, was executed this month, he was a different man from the 18-year-old accessory to a double-murder (Trump administration puts Brandon Bernard to death amid rushed series of executions, 11 December). Spending two decades in solitary confinement changed him. Brandon never had a single infraction on death row. He did church youth outreach to help teens make better choices in life.
      He taught me many life lessons. To be open-hearted yet level-headed. To remain calm and patient. To be respectful and thoughtful and an attentive listener. To be kind. To live with a sense of optimism like one I’ve never witnessed. I want to hate the sin, but forgive the sinner after a horrible mistake and two decades of regret and reform. Martin Luther King Jr said “violence begets violence” and that holds true when the violence is committed by the government. Brandon became a beautiful person. When we killed Brandon, we killed the belief that one can change. Jen Wasserstein Washington DC, US
      • It has long been my view that any country that condones judicial murder in the name of justice cannot be deemed civilised. Suellen Pedley Stanford in the Vale, Oxfordshire More

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      Second federal prisoner scheduled to die in weeks has Covid, lawyers say

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      A second federal prisoner scheduled to be put to death next month, as the Trump administration rushes to execute more people before Joe Biden takes power, has tested positive for Covid-19, his lawyers said on Friday.Cory Johnson’s diagnosis came a day after attorneys for Dustin John Higgs confirmed he had tested positive at a US prison in Terre Haute, Indiana, where both men are on death row.Johnson, Higgs and a third inmate, Lisa Montgomery, are scheduled to be put to death by lethal injection at the federal complex just days before Biden takes office.The Trump administration resumed federal executions after a 17-year pause in July and has carried out 10 death sentences since then, including two last week. It has executed more people in a single year than any other administration in more than 130 years and this year has killed more inmates than all the states put together.Johnson’s lawyers, Donald Salzman and Ronald Tabak, called on federal authorities to strike their client’s current execution date of 14 January – six days before inauguration day. Higgs is scheduled to die a day later.Montgomery’s execution date is 12 January, but because she is the only woman on federal death row she is held at a separate prison in Texas and would need to be brought to Indiana to be executed. She would be the first woman killed by the US government in 67 years.Johnson’s attorneys said his infection would make it difficult to interact with him in the critical days leading up to his scheduled execution, adding: “The widespread outbreak on the federal death row only confirms the reckless disregard for the lives and safety of staff, prisoners, and attorneys alike.”“If the government will not withdraw the execution date, we will ask the courts to intervene,” they said.The US Department of Justice and Bureau of Prisons did not respond to requests for comment.Prosecutors alleged Johnson was a crack cocaine dealer who killed seven people in 1992 in an attempt to expand the territory of a Richmond, Virginia, gang and silence informants. His legal team has argued that he is intellectually disabled, with a far below average IQ, and therefore ineligible for the death penalty.Higgs was convicted of ordering the 1996 murders of three women in Maryland. Montgomery was convicted of using a rope to strangle a pregnant woman in 2004 and then using a kitchen knife to cut the baby girl from the womb, authorities said.The Bureau of Prisons confirmed in a statement on Thursday that inmates on federal death row have tested positive for Covid-19. As of Thursday, there were more than 300 inmates with confirmed cases at FCC Terre Haute. The Bureau of Prisons said “many of these inmates are asymptomatic or exhibiting mild symptoms”.Nationwide, one in every five state and federal prisoners has tested positive for the coronavirus, a rate more than four times as high as the general population, according to data collected by the Associated Press and the Marshall Project. More

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      Donald Trump has executed more Americans than all states combined, report finds

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      Donald Trump has added a morbid new distinction to his presidency – for the first time in US history, the federal government has in one year executed more American civilians than all the states combined.In the course of 2020, in an unprecedented glut of judicial killing, the Trump administration rushed to put 10 prisoners to death. The execution spree ran roughshod over historical norms and stood entirely contrary to the decline in the practice of the death penalty that has been the trend in the US for several years.The outlier nature of the Trump administration’s thirst for blood is set out in the year-end report of the Death Penalty Information Center (DPIC). In recent years, the annual review has highlighted the steady withering away of executions, all of which were carried out by individual states.That pattern continued at state level in 2020, heightened by the coronavirus pandemic which suppressed an already low number of scheduled executions. Only five states – Alabama, Georgia, Missouri, Tennessee and Texas – carried out judicial killings. And only Texas performed more than one, producing the lowest number of executions by the states since 1983.States carried out seven executions to the federal government’s 10. Despite the rash of federal killings, that still amounted to the fewest executions in the US since 1991.Against that downward path, the actions of the Trump administration stand out as a grotesque aberration.“The administration’s policies were not just out of step with the historical practices of previous presidents, they were also completely out of step with today’s state practices,” said Robert Dunham, DPIC executive director and lead author of its year-end report.Part of the story was Trump’s willful refusal to take the coronavirus seriously. Unlike death penalty states, the federal government insisted on proceeding with executions. As a result, there was an eruption of Covid-19 cases at the Federal Correctional Complex in Terre Haute, Indiana which the DPIC report notes infected at least nine members of execution teams.But the overwhelming story of the federal executions in 2020 was the disdain shown by the Trump administration towards established norms, and its determination to push the death penalty to the limits of decency even by standards set by those who support the practice.Since Trump lost the election on 3 November, the federal government has put to death three prisoners: Orlando Hall, Brandon Bernard and Alfred Bourgeois. The last time a lame-duck president presided over an execution was in 1889, when the Grover Cleveland administration killed a Choctaw Indian named Richard Smith.All three Trump lame-duck executions involved black men. As the DPIC review points out, racial disparities remain prominent in the roll call of the dead, as they have for decades, with almost half of those executed being people of color.The review exposes other systemic problems in the Trump administration’s choice of prisoners to kill. Lezmond Hill, executed in August, was the only Native American prisoner on federal death row. His execution ignored tribal sovereignty over the case and the objections of the Navajo Nation which is opposed to the death penalty.The subjects of the federal rush to the death chamber included two prisoners whose offenses were committed when they were teenagers. Christopher Vialva was 19 and Bernard 18: they were the first teenage offenders sent to their deaths by the US government in almost 70 years.The sharp contrast between the Trump administration’s aggressive stance and the dramatic reduction in executions at state level is underlined by the annual review of the Texas Coalition to Abolish the Death Penalty (TCADP), also released on Wednesday.Texas, traditionally the death penalty capital of America, carried out three executions this year, down from nine in 2019. The most recent was on 8 July. Billy Joe Wardlow was 18 in 1993 when he committed robbery and murder.“The fact that state legislators, juvenile justice advocates, neuroscience experts and two jurors from Wardlow’s trial had called for a reprieve based on what we know now about adolescent brain development make the circumstances of his arbitrary execution even more appalling,” said Kristin Houlé Cuellar, TCADP executive director.There was some good news. In March, Colorado became the 22nd state to abolish the death penalty. Louisiana and Utah have not executed anybody in 10 years.Joe Biden, the president-elect, has vowed to eliminate the death penalty. But until he enters the White House on 20 January Trump remains in charge. Three more federal inmates are set to die – including the only woman on federal death row – before he is done. More

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      Donald Trump believes in clemency and mercy. But only for his friends and family | Jill Filipovic

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      Given that Donald Trump treats the office of the presidency like a personal branding tool, and deals with adversity like a two-bit mafioso, this moment was perhaps predictable: the president is reportedly considering pre-emptively pardoning three of his children, his son-in-law, and associates including Rudy Giuliani. He has already pardoned or commuted the sentences of several of his friends and associates, which should raise some eyebrows – why do so many people who surround this president wind up charged with a crime, in jail, or bracing themselves for criminal charges? And why is the supposedly law-and-order “pro-life” Republican party shrugging as this president excuses the criminality of his kin and his cronies while he refuses to intervene to save anyone from execution – and in fact, is using what little time he has left in office to reinstate barbaric practices like death by firing squad?We all know Trump didn’t drain the swamp. But in his last two months in office, he is sending a clear message about who and what he and his party value. It’s not Christian mercy, or hard-nosed law and order, or even the sanctity of life. It’s power, dominance and a thick line between two Americas: one connected, white, power-hungry and lawless, and the other at its mercy.As Trump’s term winds down, the White House is reportedly besieged with requests from lackeys and sycophants and hangers-on and D-list celebrities who all believe the president may grant them a get-out-of-jail-free card (or, in the case of his children and Giuliani, who have not been charged or convicted of any crimes, a get-out-of-ever-being-held-accountable card). Even the Tiger King has made his case to the president.Many expect that the president will issue a flurry of pardons and commutations, and this largesse will be bestowed much like the measly 11 pardons and commutations he’s issued so far: on people who worked for him, people who supported him, people could incriminate him and people who personally impress him (sometimes via reality television stars, because we are living in the worst of times).Trump has refused to use his powers for good, and has been appalling harsh on those who have been over-sentencedHe’s granted clemency almost entirely to his friends, advisers, supporters and loyalists, with a few war criminals and conservative cultural icons thrown in for good measure. The only people he has used his pardon power to help who fall outside that characterization are either famous but long-dead historical figures and Alice Marie Johnson, who was serving a life sentence for a non-violent drug offense – and whose case he only learned about because reality television star Kim Kardashian West brought it to his desk.What he largely hasn’t done is use the presidential clemency power for its highest purpose: to correct serious injustice and act with compassion.Despite touting himself as a president who has done more for criminal justice reform than any other, the opposite is actually true: Trump has refused to use his powers for good, and has been appalling harsh on those who have been over-sentenced. Several people on federal death row have appealed to the president for clemency – not to go home, just to not be killed by the state. So far, Trump has ignored them. The list of those who are still alive includes Brandon Bernard, who was just 18 when he joined a group of friends for what he thought was going to be a carjacking and a robbery; one of his friends ended up murdering the couple the group robbed, in a brutal act Bernard had not foreseen and was horrified by. At trial, Bernard’s lawyer, who had never argued a federal death penalty case before, barely mounted a defense and failed to call important witnesses. Several members of the jury that convicted him now say that he should not be executed. And there’s Lisa Montgomery, the only woman on federal death row, who committed an awful crime – she murdered a pregnant woman and stole her baby – but also has a severe and debilitating mental illness, and, her lawyers say, was psychotic when she committed that heinous crime. More