The Federal Death Penalty and the Supreme Court
John Christie • February 2, 2021
After 17 years without one federal execution, the federal government executed 13 people between July 2020 and the end of the Trump administration in mid-January. The final execution occurred the week before the inauguration, concluding a push to carry out all these death sentences before Pres. Joe Biden took office.
To put this in historical context, the federal government executed more than three times as many people in the last six months than it had in the previous six decades. This all came about as the result of a decision last July by then-Attorney General William Barr to direct the federal Bureau of Prisons to begin scheduling executions. "We owe it to the victims and their families to carry forward the sentence imposed by our justice system," Barr said.
This federal execution spree came at a time when more than two-thirds of the states have abolished capital punishment (22 states) or have not carried out an execution in at least 10 years (another 12 states). (Death Penalty Information Center, 2020 Year End Report, December 16, 2020.) State executions during 2020 were geographically isolated, with just five states — four in the South — performing any executions at all.
The unprecedented rush to schedule federal executions predictably gave rise to many difficult legal disputes, with many related to particular claims made on behalf of individual inmates on death row. To what extent does the single use of pentobarbital for executions risk extreme pain and needless suffering? Has an inmate demonstrated a sufficient likelihood that she is mentally incompetent—to the point where she will not understand the fact, meaning, or significance of her execution? Should a court apply contemporary diagnostic standards to determine if an inmate is intellectually disabled at the time of his execution? Does the federal government have to follow state requirements for how much advance notice an inmate receives for her execution?
Other legal uncertainties involved the application of a federal statute known as the Federal Death Penalty Act. Enacted in 1994, it requires that a federal death sentence be “implemented in the manner prescribed by the law of the state in which the sentence is imposed.” Three lower federal court judges have offered three different views on how to define the “manner” of implementing a death sentence and where to locate the relevant “law of the state.”
Rather than permit an orderly resolution of these and other issues, the Justice Department consistently refused to postpone executions and sought emergency relief to proceed before courts had meaningful opportunities to determine if the executions were legal. In doing so, the department was assisted by a majority on the Supreme Court, which consistently allowed the executions to occur before the courts below were able to finally resolve them. The Supreme Court’s majority even intervened to lift stays of execution that lower courts put in place, thereby ensuring that the challenges made would never receive a meaningful airing.
Very few of these decisions by the Supreme Court’s majority offered any public explanation for their rationale and frequently resulted in dissents by Justices Breyer, Sotomayor, and Kagan. All of this occurred in response to emergency applications, with little opportunity for proper briefing and often in just a few short days or even hours.
“This is not justice” said Justice Sotomayor, dissenting in the last of these cases, United States v. Dustin John Higgs (January 15, 2021). As she observed, whatever one might think about the merits of the issues raised, they surely deserved to be finally resolved before execution was allowed to occur. “Over the past six months, this Court has repeatedly sidestepped its usual deliberative processes, allowing an unprecedented, breakneck timetable of executions. With due judicial consideration, some of the government’s arguments may have prevailed and some or even many of these executions may have ultimately been allowed to proceed. Others may not have been. Either way, the Court should not have sanctioned these executions without resolving these critical issues. The stakes were simply too high.”
John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Common Sense for the Eastern Shore
Congressman Andy Harris is facing a steady stream of criticism on social media following his vote against releasing the full files related to Jeffrey Epstein in July. The House of Representatives blocked the release of the files on a 211 to 210 vote. Since his vote, commenters on nearly every post from Congressman Harris’s official Facebook page have repeatedly raised the issue, questioning his decision and asking for an explanation. The comments are often similar in wording and appear across different topics, from agriculture updates to health care policy. In addition to individual commenters, local advocacy pages such as Decency for District 1 have been highlighting Harris’s vote since July 31. The page has consistently called for greater transparency, arguing that constituents deserve to know why their representative opposed making the records public. Despite the visible online pushback, no major Eastern Shore news outlet has yet reported on Harris’s vote or the public response to it. Neither local television stations nor regional newspapers have published stories on the controversy, leaving the discussion largely confined to social media platforms. The Epstein files vote has drawn national attention in recent weeks, as lawmakers in both parties have faced questions about whether more information should be released. In a town hall at Chesapeake College, Maryland Senator Chris Van Hollen talked about the importance of transparency and the need to release the files; he offered an amendment in the Senate to force the release. Rep. Harris, the Eastern Shore’s lone representative in Congress, has not issued a public statement addressing his position beyond his recorded vote. For now, the conversation remains one-sided. Constituents continue to press the question online, while traditional media outlets in the district have yet to engage with the story. Jan Plotczyk spent 25 years as a survey and education statistician with the federal government, at the Census Bureau and the National Center for Education Statistics. She retired to Rock Hall.
Donald Trump promised he would lower costs on Day One. A lot of people believed him. (Some still do.) But instead of addressing the economic concerns that got him elected, he pushed his One Big Beautiful Bill into law. Instead of lowering the cost of energy and groceries for regular folks, his OBBB gives handouts to the rich. The Democratic National Committee has put together a website that details all the ways we lose and the rich guys win. They’re calling it the Trump Tax. Here’s what they have to say. Nationally,
The Fourth Amendment to the Constitution prohibits “unreasonable searches and seizures.” It applies to all seizures of a person, including seizures that involve only a brief detention short of traditional arrest. As interpreted by the Supreme Court in an immigration context, except at the border, the Fourth Amendment prohibits immigration enforcement officers to make detentive stops unless they are aware of “specific articulable facts that reasonably warrant suspicion” that the person detained may be illegally in the country. Reasonable suspicion cannot be based on “generalizations” that, if accepted, would cast suspicion on large segments of the law-abiding population. On June 6, 2025, federal law enforcement arrived in Los Angeles to participate in what federal officials have described as “the largest Mass Deportation Operation . . . in History.” U.S. Customs and Border Patrol agents and officers were sent to join officers from the Enforcement and Removal Operations directorate of U.S. Immigration and Customs Enforcement (“ICE”) to carry out “Operation At Large” in Los Angeles, California. This operation involved teams of three to five agents who temporarily detained individuals in public places such as streets, sidewalks, and publicly accessible portions of businesses, and made arrests for immigration violations. On July 2, five individual plaintiffs and three membership associations sued twelve senior federal officials, who share responsibility for directing federal immigration enforcement in the Los Angeles area, alleging a violation of the Fourth Amendment. Perdomo v. Noem (C. D. Cal). The complaint asserts that by an ongoing policy and/or practice, detentive stops in the Central District of California were being conducted without reasonable suspicion that the person to be stopped is within the United States in violation of U.S. immigration law. Reviewing the evidence offered by the plaintiffs in support of an injunction pending further litigation, the district court found that circumstances surrounding the stops were coercive enough that the interactions were not consensual. The district court also found that the plaintiffs are “likely to succeed in showing that seizures were based only upon four enumerated factors” or a subset of them. Those factors were (1) apparent race or ethnicity; (2) speaking Spanish or speaking English with an accent; (3) presence at a particular location; and (4) the type of work one does. The district court then concluded that in the context of the Central District of California, those four enumerated factors — even when considered together — describe only a broad profile and “do not demonstrate reasonable suspicion for any particular stop.” Moreover, the court determined that, despite there being no evidence of an “official policy” of making stops based only on the four factors and without reasonable suspicion, there was sufficient evidence to show that defendants’ agents were routinely doing so. Premised on these conclusions, on July 11, the district enjoined the defendant officials from relying solely on the factors below, alone or in combination, to form reasonable suspicion for a detentive stop: Apparent race or ethnicity; Speaking Spanish or speaking English with an accent; Presence at a particular location (e.g., bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.); or The type of work one does. The administration appealed the district court’s order to the Ninth Circuit Court of Appeals which refused to intervene. Perdomo v. Noem (July 28). The three judge panel determined that “a characteristic common to both legal and illegal immigrants does little to arouse reasonable suspicion.” In the U.S. generally, apparent Hispanic or Latino race or ethnicity generally has limited probative value, because large numbers of native-born and naturalized citizens have the physical characteristics identified with Hispanic or Latino ethnicity. Speaking Spanish and speaking English with an accent are likewise characteristics that apply to a sizable portion of individuals lawfully present in this country. As to location, the Supreme Court has made clear that an individual’s presence at a location that illegal immigrants are known to frequent does little to support reasonable suspicion when U.S. citizens and legal immigrants are also likely to be present at those locations. US v. Brignoni (1975). Like location, the type of work one does is at most “marginally relevant” to establishing reasonable suspicion, even if it is work commonly performed by immigrants without legal status. Evidence that a particular employer is employing a large number of undocumented workers does not create reasonable suspicion as to each individual employee. On August 7, the administration once more sought emergency relief from the Supreme Court. In doing so, the Solicitor General asserts that the injunction entered puts “a straitjacket on law-enforcement efforts.” Although this case arises out of ICE activities in Southern California, the Supreme Court’s ultimate decision will have obvious implications for the practices of ICE agents nationwide. John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Across the U.S. food supply chain, more than one in five jobs is carried out by immigrants, the equivalent of 14 million workers across the sector. But many of these foreign-born workers — regardless of legal status — are afraid that they’ll be swept up in the administration’s illegal and cruel arrest, detention, and deportation actions. So, they’ve started staying home. The long-term effects of losing a substantial portion of the workforce will send a shock through the industry: crops will not be harvested, livestock will not be processed, grocery shelves will thin out, restaurants and food trucks will close, and food will get more expensive than it already is.
Eastern Neck National Wildlife Refuge is threatened by federal budget and staffing cuts. We are fortunate to have this unspoiled, undeveloped public land in Kent County. More than 70,000 people visit ENNWR annually for recreation and to enjoy its natural beauty. In April, Common Sense for the Eastern Shore published an article asking for help in spreading the word about the threat to ENNWR. The need for support in the face of this threat still exists. If you’d like to know more and would like to pitch in to help, Citizens Connect is holding an informational session: Monday, August 18, 5-6:30 pm Unitarian Universalists of the Chester River, 914 Gateway Dr, Chestertown The presentation and discussion will be led by members of the Board of Directors of Friends of Eastern Neck, Bill Burton, president, and Bonnie Ford, vice president. The session will cover how drastic budget cuts to the US Fish & Wildlife Service jeopardize the health of the refuge and threaten its survival. Without adequate staff, Eastern Neck could be “shuttered," public access curtailed, and the Visitors Center closed. Invasive plants would grow unchecked, migratory waterfowl would be at risk, and hunts would end.
Mayor Randy Taylor is once again at the center of controversy after being involved in a traffic incident Monday morning, his fourth car accident in less than two years since taking office. According to Mayor Taylor’s official statemen t, the accident occurred around 8:30 a.m. on South Boulevard and involved a pedestrian using a walker. Taylor described the incident as “minor,” claiming that only the wheel of the pedestrian’s walker made contact with the rear of his city-issued vehicle. He further stated that the pedestrian refused medical treatment and that all protocols were followed. However, eyewitness accounts and photos circulating on social media paint a different picture. A bystander who witnessed the event posted that the mayor struck the pedestrian in the crosswalk and initially continued driving as if he had “hit a cone,” before returning to the scene. The witness described a delayed police response and expressed frustration that no other vehicles stopped to assist. Photos of the aftermath show a visibly shaken pedestrian, leaning on his walker, with Mayor Taylor standing nearby inspecting the damage. The images have sparked widespread outrage across the community. “This is not an isolated event,” said one resident in a viral post. “This is his fourth accident since taking office, and every time it’s brushed off as a ‘minor issue.’ How many more ‘minor issues’ will it take before there’s real accountability?” The mayor’s track record with city vehicles has drawn sharp criticism, with many Salisbury residents demanding answers about why repeated accidents have not resulted in consequences. Previous incidents have ranged from parking lot collisions to property damage, all involving city vehicles. Calls for transparency have intensified, with community members pressing for clarity on whether mandatory post-accident drug and alcohol tests were administered, as required by city policy. Mayor Taylor maintains that all procedures were followed and has promised to share a final report of the incident within 10 days. In the meantime, public confidence continues to erode, with many expressing frustration over what they see as a dangerous pattern of recklessness. “Four accidents in two years,” another commenter posted. “If a city worker had that record, they’d be gone. Why does the mayor get a free pass?” Neither the Salisbury Police Department nor Maryland State Police has issued an official report yet.
