The United States Department of Justice (“DOJ”) has scheduled the execution of Lezmond Mitchell—a Navajo man who is the sole Native American on federal death row—for August 26, 2020.

Over the past two decades, the DOJ has zealously pursued the execution of Mitchell despite the objections of the Navajo Nation and the family of the victims. The DOJ has also circumvented a federal statute that was intended to give Indian tribes control over the use of the death penalty for crimes committed within a tribe's reservation.

In 2003, Mitchell was convicted of murdering Alyce Slim, a 63-year old Navajo woman, and Tiffany Lee, her 9-year old granddaughter, on the Navajo reservation. The Navajo Nation informed the prosecutors that it opposed seeking the death penalty for Mitchell because Navajo “culture and religion teaches us to value life and instruct against the taking of human life for vengeance.” Members of the victims' family also expressed opposition to the death penalty.

The United States Attorney for the District of Arizona recommended that the death penalty not be sought in the case, but Attorney General John Ashcroft overruled this recommendation and instructed prosecutors to seek a death sentence.

Under the Federal Death Penalty Act of 1994 (“FDPA”), the death penalty is not permitted for certain crimes that occur on a reservation, including murder, unless the tribe elects to allow this punishment. See 18 U.S.C. § 3598. The Navajo Nation has not opted-in to the death penalty under this statute, and thus federal prosecutors could not seek capital punishment for Mitchell's murder convictions.

In order to bypass this statutory limitation, the DOJ sought the death penalty for Mitchell's conviction for the crime of carjacking resulting in death. The Ninth Circuit has ruled that this offense is a crime of nationwide applicability, and thus not subject to the tribal opt-in provision of the FDPA. See United States v. Mitchell, 502 F.3d 931, 948–49 (9th Cir. 2007).

Mitchell was sentenced to death on September 15, 2003. The Ninth Circuit upheld Mitchell's conviction in 2007, and rejected Mitchell's petition for habeas corpus in 2015. In both of these decisions, Judge Reinhardt wrote strongly worded dissents that criticized the DOJ's disregard of the Navajo Nation's opposition to capital punishment and raised a number of constitutional concerns about Mitchell's conviction and sentencing.

Mitchell remained in prison from 2003 to 2019, during which time no federal executions were carried out in the United States. But on July 25, 2019, Attorney General Barr announced that the federal government would resume capital punishment, and he specifically directed that five prisoners be scheduled for execution, including Mitchell.

The Ninth Circuit temporarily stayed Mitchell's execution to consider an appeal he had filed relating to a request to investigate potential juror misconduct at his 2003 trial. The court ruled against Mitchell on April 30, 2020, but Judge Christen and Judge Hurwitz wrote separate concurrences raising concerns about the DOJ's pursuit of the death penalty in this case.

Judge Christen's concurrence stated that “it is worth pausing to consider why Mitchell faces the prospect of being the first person to be executed by the federal government for an intra-Indian crime, committed in Indian country, by virtue of a conviction for carjacking resulting in death.”

She also criticized the federal government for circumventing the intent of the FDPA, stating, “the United States made an express commitment to tribal sovereignty when it enacted the tribal option [in the FDPA], and by seeking the death penalty in this case, the United States walked away from that commitment.”

Judge Hurwitz's concurrence encouraged the executive branch to “take a fresh look at the wisdom of imposing the death penalty” in the case, noting that “proper respect for tribal sovereignty requires that the federal government not only pause before seeking that sanction, but pause again before imposing it.”

The DOJ was unmoved and has scheduled Mitchell to be executed by lethal injection on August 26, 2020.

Mitchell's attorneys have filed an application for executive clemency, asking President Trump to commute Mitchell's sentence to life without the possibility of parole. His attorneys are also seeking signatures from tribal leaders and Native Americans supporting clemency, which is available here. Signatures must be received by August 16, 2020.

Mark H. Donatelli and other members of the firm have been assisting the attorneys representing Mitchell since 2008.