A Federal Death Sentence Ignores The Opposition Of ‘The Navajo People Who Value Life’

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In July, the Department of Justice announced that Attorney General William Barr had ordered the federal Bureau of Prisons to resume executions. The last federal execution was carried out in 2003, before challenges to the use of lethal injection brought them to a decade-and-a-half long halt. The announcement represented a reversal that capital defense attorneys had feared since Donald Trump’s presidential election victory.

Five of the 62 people on federal death row now have execution dates in December and January. This comes at a time when the death penalty has been in decline and amid a broader national reckoning with the consequences of the United States’s uniquely harsh punishment system.

Critics of the decision have pointed out that the men chosen for execution are hardly representative of federal death row and were instead selected to blunt criticism of the decision. Speaking with Liliana Segura of The Intercept, Monica Foster, a federal public defender said that, with respect to race, the list of people scheduled for execution “was curated in a really cynical way.” While three of the five men chosen are white, the reality, Foster pointed out, is that if executions continue “it’s going to be black person after black person after black person.”

Lezmond Mitchell is one of the men scheduled for execution. Mitchell’s case stands out for a number of reasons. He is the only Native person on federal death row. And despite the DOJ claim that it had scheduled executions for people who had exhausted their appeals, Mitchell has one pending. Last week, a divided three-judge panel of the court granted a stay of execution on these grounds.

Mitchell’s case is also significant, as Christie Thompson of the Marshall Project chronicled last month, because he is a citizen of the Navajo Nation, a tribe that has repeatedly expressed its opposition to the death penalty, including in Mitchell’s case. Mitchell was charged with the murder of a Navajo woman, Alyce Slim, and her granddaughter. After Mitchell’s arrest, Slim’s daughter, Marlene Slim—who had lost her mother and her daughter—and the Navajo Nation expressed their opposition to capital punishment as a possible sentence.

The federal prosecutor assigned to Lezmond Mitchell’s case considered Marlene Slim’s and the tribe’s opposition and decided against pursuing the death penalty. But that decision was overruled by then-Attorney General John Ashcroft.

The Navajo Nation is not alone in its opposition to capital punishment. All but one of the federally recognized tribes have chosen not to opt in to a provision that would make “major crimes” committed on reservation land eligible for the death penalty. In Mitchell’s case, the government found a way around tribal opposition and availed itself of the sweeping menu of federal charges eligible for the death penalty, prosecuting him for carjacking that resulted in death.

As recently as last year, the attorney general of the Navajo Nation, Ethel Branch, stated in a letter: “The death penalty is counter to the cultural beliefs and traditions of the Navajo People who value life and place a great emphasis on the restoration of harmony through restoration and individual attention.” Branch issued the letter in connection with the case of Kirby Cleveland, a Navajo man. Cleveland was charged with the killing of a police officer and federal prosecutors announced their intention to pursue the death penalty. Eleven months later, after sustained opposition from the Navajo Nation, they reversed that decision.

Had Mitchell faced a jury representative of his tribe, his death sentence might have never been delivered. (Mitchell’s appeal hinges on the question of racial bias among jurors, which his attorneys were not allowed to investigate.) Mitchell’s mostly-white jury, drawn from a pool 100 miles from the Navajo Nation, as the Marshall Project reported, included only one Navajo member. Thus, Mitchell faced a jury that had been selected to bear little resemblance to the community from which he came or that had suffered the loss of two of its members, and was not representative of the Navajo Nation’s stated commitment to forgiveness and restoration.

(A case scheduled for reargument at the Supreme Court this term demonstrates how thorny and consequential questions of jurisdiction and tribal sovereignty are. In Carpenter v. Murphy,  Patrick Murphy, a Muscogee Creek man sentenced to death under Oklahoma law, argues that his conviction is invalid because the homicide he is charged with took place on what is tribal land, which gives federal, not state, authorities jurisdiction over the case. If decided in Murphy’s favor, the Carpenter case could result in what Rebecca Nagle of the podcast “This Land” described as the “largest restoration of Native land in US history.”)

Mitchell’s death sentence and now his scheduled execution, which the pending appeal might still avert, tell a story about disregard for what the victims and the affected community actually wanted. Much of this is specific to the United States government’s centuries-long disregard for the sovereignty of tribes. But it is also representative of the lie that law enforcement tells about how victims matter.

Since his appointment to replace Jeff Sessions last year, Barr has made it clear that he is still the champion of a “law and order” vision that allowed him to release “The Case for More Incarceration” in 1992 when he was attorney general under President Ronald Reagan. Barr has consistently aligned himself with police officers and police unions, repeating falsities about rising crime and officers at risk, and attacking the work of reform-minded prosecutors.

But in some ways Barr is too obvious of a villain (albeit a uniquely powerful one). The narrative he espouses is enacted in prosecutors offices around the country. It casts law enforcement officials as the champions of those who are harmed but allows them to ignore large swaths of survivors of violence (including the crisis of missing and murdered Native women and girls that has failed to elicit a meaningful response). In cases that are prosecuted, victims and their wishes are invoked selectively. When they oppose release on parole, for instance, or when they want prosecutors to seek the harshest punishment, they are used to justify a punitive vision of justice. But people who have been harmed pose an uncomfortable problem when, as in Lezmond Mitchell’s case, they ask for something else.

This country has, of course, consistently ignored tribal sovereignty and denied justice and safety to Native people. But we live in a moment when the principles and practices of restorative justice are attracting wider attention. There is a recognition that restorative justice centers the needs of victims and the obligations incurred when one person harms another—unlike law enforcement methods that offer incarceration as the only recognition of wrongdoing. These principles have long been a part of the working justice mechanisms of North American tribes.

It is too easy for Barr to restart a “law and order” execution apparatus that pays little attention to what survivors, communities, or even tribes want. Mitchell’s case, from the decision to seek the death penalty to the push to execute him, is another demonstration of how the law enforcement impulses that have claimed to be on the side of survivors and community safety for so long in this country repeatedly ignore them and the healing and safety they seek.