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
The Republican Congress and President Trump are causing a health care crisis and Democrats are trying to fix it. Passed in July, the GOP budget reconciliation bill is drastically cutting health insurance programs to pay for tax cuts for billionaires. Rep. Andrew P. Harris (R-MD01) voted for the budget reconciliation bill. He voted, knowing that his vote would mean that health care costs would rise for 25,000 of his constituents in Maryland’s First Congressional District:
Efforts by the Trump administration to delay a critical court case over Maryland’s offshore wind project have failed, marking another setback in the president’s campaign to block renewable energy development along the East Coast. On Oct. 2, U.S. District Court Judge Stephanie Gallagher denied a motion filed by the Department of Justice to pause an ongoing lawsuit involving US Wind’s proposed 114-turbine wind farm off Ocean City. The administration had argued that the federal government’s shutdown prevents its attorneys from continuing the case. The judge’s swift rejection ensures that the litigation and progress on one of Maryland’s most significant clean energy projects will continue. Initially filed by Ocean City officials and a small group of residents nearly a year ago, the suit challenges the federal approval of US Wind’s project, which would deliver enough clean electricity to power more than 700,000 homes. Under the Biden administration, the federal government had defended the project in partnership with US Wind. That stance was reversed after Trump took office earlier this year and installed officials hostile to offshore wind. In September, the Trump administration filed a separate motion seeking to vacate federal approval for the Maryland project altogether, a move widely condemned by environmental advocates, labor groups, and business leaders who see offshore wind as a cornerstone of Maryland’s energy and economic future. US Wind responded forcefully to the shutdown motion, warning the court that the administration’s attempts to delay proceedings could allow it to undermine the project’s approval behind the scenes quietly. The company argued that halting the case would create “existential risks” for the future of Maryland’s offshore wind industry. Judge Gallagher agreed that the case should move forward, setting the next status hearing for Oct. 7. The Trump administration’s repeated efforts to obstruct offshore wind development come as Maryland and other states have invested heavily in building the infrastructure, workforce, and port facilities needed to anchor the growing clean energy industry. Maryland Gov. Wes Moore has championed the sector as a key driver for well-paying jobs and long-term economic resilience for the Eastern Shore. Supporters of US Wind point out that the project will bring over $1 billion in investment to Maryland, generate thousands of construction and maintenance jobs, and help deliver cleaner, more affordable energy to homes and businesses across the region. “Offshore wind isn’t just about turbines, it’s about jobs, innovation, and independence,” one clean energy advocate said after the ruling. “Every delay costs working Marylanders opportunity, and this decision ensures progress continues.” While the broader lawsuit over the project’s approval is ongoing, the latest ruling represents a clear win for those fighting to keep Maryland’s offshore wind future on track — and a blow to Trump’s attempt to turn back the clock on clean energy.
Maryland has eight congressional districts, and the seats for all but District 01 are filled by Democrats. As we well know, the First District representative is a Republican — Andrew P. Harris. Here’s what Maryland’s congressional district map is now.
With standing room only at Salisbury’s Historic Poplar Hill Mansion, and blending policy, community service, and grassroots energy, Megan Outten launched her campaign for Wicomico County Council District 7 before almost 100 supporters on Oct. 4. The event drew community residents, labor leaders, and local officials, many of whom also helped to pack nearly 300 care kits for Wicomico residents in need. The community service effort doubled as a campaign statement about what Outten calls “choosing connection over convenience.” District 7 is one of Wicomico’s newly drawn single-member districts, with a Democratic advantage of 7.7%. Outten recalled her family’s history of service in Fruitland and Salisbury. “Service isn’t just politics in my family,” she said. “It’s how you belong to a place. It’s how you prove you care.” She pointed to the county’s landfill crisis, water and septic system failures, and school underfunding as examples of leadership that reacts rather than plans. “This is what happens when leaders only react after things break,” she said. “It costs us more. It hurts families. It robs our kids of the future they deserve.” Outten was joined by several local leaders who offered strong endorsements and reflections on her record. AFSCME Local 3 Eastern Shore representative Jack Hughes praised her leadership on the Salisbury City Council, crediting her with helping pass the Eastern Shore’s first municipal labor code, a significant win for city workers and first responders. Councilman Josh Hastings, who represents the district and is running for the Maryland House of Delegates in District 38B, said Outten would be “crucial in carrying forward the progress we’ve made” on clean water, schools, and infrastructure planning. Whitney Snowden-Olanrewaju from Blending Cultures, a non-profit organization that promotes diversity and equality, spoke about Outten’s record of community inclusion and bridge-building across diverse groups. Outten’s campaign is expected to roll out additional endorsements in the coming weeks. In her speech, she outlined a platform focused on fully funding schools, investing in infrastructure before it fails, and ensuring that county government works for everyone. “This campaign is not mine,” she told the crowd. “It’s ours. I am not standing above you. I am standing with you. And together, we will put Wicomico families first.” With enthusiasm, endorsements, and her message that’s focused on service and accountability, Outten’s kickoff reinforced that District 7 is already shaping up to have a strong favorite in 2026.
Community Rallies After Theft of Car Containing Hundreds of Care Kits for Wicomico Residents in Need
An act of inhumanity in Salisbury has sparked an outpouring of compassion. Early on Oct. 5, community organizer Jared Schablein’s car was stolen from his backyard. Inside the vehicle were hundreds of care kits assembled just days earlier during Megan Outten’s Wicomico County Council District 7 campaign kickoff event. Packed by volunteers at Salisbury’s Poplar Hill Mansion, the kits contained feminine hygiene products, socks, and toiletries meant for Wicomico County residents facing housing insecurity. “Those kits were meant for neighbors in need,” said Schablein. “If nothing else, I hope whoever took them returns them. Getting those care kits to the folks who need them matters more to me than anything else.” Schablein and Outten have turned the theft into action, launching a new effort called the “Care Kits Comeback Drive.” The event, scheduled for Oct. 12 at 2pm at Poplar Hill Mansion, aims to replace every lost kit, and more. Volunteers are asked to bring or donate items such as sanitary wipes, socks, toothpaste, period products, and underwear. Donations will support the Wicomico County Library, Help and Outreach Point of Entry, and other local service organizations. In announcing the new drive, Schablein emphasized the deeper meaning behind the effort: “When acts of inhumanity happen, the best response is acts of humanity. We’re showing that Salisbury’s compassion can’t be stolen.” Despite the setback, organizers say community support has been overwhelming. Donations began arriving within hours of the announcement, and several local groups have offered to distribute supplies once the new kits are complete. The theft is still under investigation by the Salisbury Police Department. As one volunteer put it at the last event, “Community isn’t guaranteed, it’s built.” This Sunday, Salisbury will build it again.
What began as a grassroots campaign to preserve a parcel of local land has become one of the most inspiring community movements on the Eastern Shore. Led by residents James and Mikele Dahlen and Holly Campbell, alongside dozens of volunteers, the Save Connelly Mill Park effort reached a significant milestone last week as Maryland Secretary of Natural Resources Josh Kurtz toured the site with local and state officials to explore opportunities for partnership and permanent protection. On Sept. 23, citizens gathered at Connelly Mill Park with a delegation of state and county leaders, including Sen. Mary Beth Carozza, Del. Barry Beauchamp, County Council President John Cannon, Vice President Jeff Merritt, Councilman James Winn, and local municipal representatives from Delmar and Salisbury. The tour marked the strongest signal to date that the state may play an active role in turning the park’s long-promised vision into reality. Advocates for Save Connelly Mill Park presented Kurtz with a booklet outlining the site’s environmental, historical, and economic importance. The presentation highlighted Connelly Mill’s potential to become a keystone of Wicomico’s park system — protecting the Paleochannel aquifer, preserving wildlife habitats, and providing much-needed green space for recreation and community gathering. Located just five miles from Salisbury, the 234-acre property has rolling forest, wetlands, and unique topography that advocates say could one day make it the “Central Park of Wicomico County.” “The natural beauty of Connelly Mill spoke for itself,” said one organizer after the event. “What we have here is not just land, it’s a promise to future generations.” Adding to the momentum, the community’s advocacy materials were presented directly to Maryland Gov. Wes Moore the next day at the Tawes Crab and Clam Bake in Crisfield, where he was briefed on the citizens’ efforts and growing local support. The proposed park would provide walking trails, open space for families, and educational opportunities while safeguarding vital water resources and promoting mental, physical, and social well-being for county residents. For many, the movement to save Connelly Mill has come to represent more than just one park. It’s about accountability, long-term planning, and ensuring public commitments to community spaces are kept. “We’re not out of the woods yet,” the group shared in a recent update. “But the spotlight is on Connelly Mill, and the momentum is growing.” As the state evaluates whether to designate Connelly Mill as a Partnership Park, supporters say they will continue to meet with officials and rally community engagement to ensure this once-forgotten project finally fulfills its promise. If realized, Connelly Mill would not only protect vital natural resources — it would stand as testament to what determined citizens can build when they refuse to give up.
