Tossing aside a de facto 17-year moratorium, the Trump Justice Department conducted the greatest number of federal executions in a single year since 1896. In the rush to kill as many people as possible before leaving office, the government, in some cases, executed people who were still fighting their cases in court.
Death penalty abolitionists don’t want that to happen again. And the new president has what may be a fleeting chance to make sure it doesn’t.
Biden is the first U.S. president to publicly oppose the death penalty, despite having risen through national politics by championing policies that expanded the use of capital punishment. He also enters the White House in a political climate that presents the best chance in decades to end the death penalty on the federal level, as well as in some states.
Nationwide protests against racist police conduct have led to a more widespread awareness of racism within the criminal justice system — a bias evident in the disproportionate number of Black people who have been sentenced to death. Medical experts have shown how the supposedly humane lethal injection execution process may actually be a torturous way to die. The exoneration of 173 people on death row has exposed that safeguards in place to prevent the killing of innocent people are unreliable. Polls show public support for the death penalty is at its lower point in nearly 50 years. And the Trump administration’s executions made clear the risk of leaving the death penalty on the table.
“We started out so naive with the death penalty that we thought we had the best court system in the world and that the appeals would work — that if they made mistakes at trial, they’d handle it in the appeals,” death penalty abolitionist Sister Helen Prejean told HuffPost. “But there’s a waking up in the country that thing isn’t working and we’re making a lot of mistakes.”
But Biden’s position is no guarantee that the federal death penalty will end under his watch. To do so requires legislation passed by Congress, which will depend on sustained pressure on lawmakers from the White House and constituents. Still, there’s plenty the president can do on his own. Death penalty opponents are calling on Biden to announce an immediate pause on federal executions and death sentences — and to commute the sentences of those who are already on death row, as a failsafe against Congress failing to act.
The early indications of Biden’s willingness to take unilateral action are unclear. The president has so far been noticeably quiet on the issue. He has not commented publicly on the people who were hurriedly executed in the six months before he took office — or spoken about how he plans to ensure that it can’t happen again under a future president. The only hint of Biden’s plans comes from his campaign platform, in which he vowed to “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”
That’s a promising goal and congressional Democrats have already introduced legislation to ban federal executions. But with the Democrats’ razor-thin majorities in the Senate and House, leaving the matter entirely to lawmakers risks leaving the people on federal death row vulnerable to execution under a future president. Biden’s platform made no mention of halting federal executions and death sentences or commuting the sentences of those on death row.
Although death penalty abolitionists are broadly in agreement about the steps the Biden administration should take to end capital punishment, nailing the strategic timing of each step is a challenge.
The window to pass legislation to abolish the federal death penalty may be narrow. Democrats could lose their control of either or both congressional chambers in the 2022 midterm elections. And as those elections draw near, vulnerable lawmakers will be reluctant to cast a vote on such a politically fraught issue.
“My view is the death penalty package should be sooner rather than later,” said Henderson Hill, senior counsel at the ACLU’s capital punishment project. “And the question for me is, do we do it in 45 days, do we do it in 60 days, do we do it in 90 days?”
Noting the need to educate the public about problems with the death penalty and to solidify congressional backing for its abolition, Hill added, “I just don’t know that I want it in the first couple of weeks.”
““Someone who was at all outraged by how horrific and barbaric this has been should just commute the row.””
The most obvious first step for the Biden administration would be to direct the Justice Department to stop seeking and defending death sentences in federal cases. That would mean prosecutors would stop requesting death sentences in new cases, withdraw requests for the death sentence in pending cases, and notify courts they will no longer defend death sentences that have already been imposed and are being challenged in post-conviction litigation.
“The new administration should not be working to fill up the death row cells that have been emptied by this execution spree,” David Bruck, a veteran death penalty defense lawyer, said in an interview. “They should stop the machinery of death within the Justice Department.”
As president, Biden could also commute the sentences of the 49 people on federal death row to life in prison without parole or a lesser sentence. This would prevent a future president from executing those on death row in the event that Congress fails to pass abolition legislation. Even if Congress succeeds in getting rid of the death penalty, there is no guarantee that the final version bill will be retroactively applied to people who have already been sentenced.
“The reason commuting the row is so important is obvious — [Biden] may not be here in four years,” said Jessica Brand, a board member for Texas Defender Service, which seeks to expose deficiencies in that state’s imposition of death penalties.
Referring to the 13 executions under the Trump administration, she said, “If you don’t commute the whole row, this can happen again. Someone who was at all outraged by how horrific and barbaric this has been should just commute the row.”
The Biden administration has declined to answer questions about the president’s willingness to commute federal death sentences, but pressure is mounting on him to do so. Since his inauguration, 37 members of Congress and a group of nearly 100 current and former prosecutors, attorneys general, law enforcement officials and judges have called on the administration to commute the sentences of those 49 people on federal death row.
Such a move could signal Biden’s commitment to the larger issue of abolition and assuage skeptics who view former President Barack Obama — Biden’s former boss — as a cautionary tale in failing to act with urgency.
As president, Obama acknowledged the death penalty was “deeply troubling” but stopped short of calling for its abolition. His attorney general during most of his White House tenure, Eric Holder, oversaw a “review” of the death penalty, an exercise that didn’t amount to much.
On his way out of office, Obama commuted the sentences of two people on federal death row but declined to help the rest — presumably under the assumption that the long hiatus on federal executions would hold. That decision meant that when Trump entered office, there were dozens of people he could choose from to execute.
There are some anti-death penalty lawyers and activists who believe that as long as Biden is committed to ensuring that no one is on death row before he leaves office, he does not need to act on the commutations during his first days in office. Commuting the row would mean reducing sentences for some high-profile and notorious people, including Dzhokhar Tsarnaev, who was sentenced to death for the Boston Marathon bombings that killed three people ― including a child ― and injured hundreds. Political blowback from the right-wing is inevitable, and the family members of victims of those on death row could feel betrayed if the administration doesn’t take the time to do thoughtful outreach.
Commuting the row before Congress moves forward with legislation to repeal the death penalty “seems to me to be a little putting the cart before the horse,” Hill of the ACLU said. “Does that make it harder to get the repeal? I know when we’ve had state campaigns, what we’ve traditionally done is get repeal done, and then we work on the row and get the row commuted.”
The Biden administration should use the legislative process to educate the public and lawmakers about the problems with the death penalty, Hill said. Legislative hearings could include testimony about the death penalty’s historical roots in racist lynchings. People who have been exonerated and freed from death row could testify about how close we’ve come to killing innocent people. “You can make a fairly good case that this policy just doesn’t make sense,” Hill said.
As Democrats in Congress work to whip up votes for death penalty abolition, the Biden administration could create a national commission on the death penalty and provide funding for states to do their own in-depth studies. Comprehensive information on wrongful convictions and how race and poverty are linked to death sentences could help move public opinion and lay the groundwork for its abolition.
“A national commission that investigated and laid out all of the facts for and against our status as an outlier among all the democracies of the world as an executing country would be useful,” Bruck said. “It would be helpful to the American people and it would be useful to the states to have a benchmark of reliable information about the whole range of issues that are tangled up with the death penalty.”
Many people can point to a case where they believe the death penalty is appropriate, Bruck noted. “But that’s not the issue,” he added. “The issue is whether we can design a system that identifies those cases and only those cases within a reasonable amount of time and at a reasonable cost and without making mistakes. And that’s the question that should be put before a commission. The answer is obvious: we’ve had a 50-year experiment on that and the answer is no. We can’t design such a system, so let’s stop trying.”