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Biden Can Reshape the Federal Death Penalty in America

The new president will have the power and should use it. Just like Trump and McConnell have.

December 22, 2020
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Joshua Roberts/Stringer/Getty

The Trump admin­is­tra­tion’s decision to execute five condemned federal pris­on­ers during the pres­id­en­tial trans­ition — an unpre­ced­en­ted killing spree — stems from the same blunt theory of governance that saw Senate Major­ity Leader Mitch McCon­nell refuse to hold a Supreme Court confirm­a­tion hear­ing for Merrick Garland in 2016 while rush­ing to confirm Amy Coney Barrett earlier this year.

In each instance, those with power eschewed cher­ished norms and polit­ical comity and used it. Their right to do these things gave them the might to do it, you could say, regard­less of what the rest of us thought about it all.

In a little over four weeks, Joe Biden will have that same power to write his own history with capital punish­ment in Amer­ica. The cent­ral ques­tion is whether he has the polit­ical will and moral strength to exer­cise the power. He can empty federal death row in Terre Haute, Indi­ana, by commut­ing to life-without-parole terms the death sentences of the 50 or so people left on it. He can direct the Justice Depart­ment to instruct each and every U.S. attor­ney around the coun­try not to pursue capital charges for federal crimes. He can order the comple­tion of a death penalty study disap­point­ingly left unfin­ished during the Obama admin­is­tra­tion.

He is being pushed hard by death penalty abol­i­tion­ists and others to do these things and to go even further — to provide federal incent­ives for state and local prosec­utors to avoid seek­ing capital punish­ment. The first part of that equa­tion affects fewer than the approx­im­ately 100 people on death row or facing federal capital charges. The second part of the equa­tion could ulti­mately affect thou­sands. Forty members of Congress just sent Biden an open letter urging him to power down what the late Justice Harry Black­mun called “the machinery of death” so that future pres­id­ents cannot do what Donald Trump has done.

Biden’s views on the death penalty have evolved over the past three decades, as have many of his other views on crime and punish­ment. In the early 1990s, in the runup to congres­sional passage of the infam­ous 1994 crime bill, he suppor­ted more capital punish­ment as part of a brutal senten­cing regime that added dozens of new crimes to the litany of those for which the death penalty was an option. He’s smarter now, he says. A few years ago, as he mulled a pres­id­en­tial run, as he was pulled left­ward by his primary oppon­ents, and as the toll of the 1994 law became too much to bear, Biden began to change his tune and soften his stand.

Now he says he’s opposed to capital punish­ment and is ready to do some­thing about it. That would be great. The new pres­id­ent ought to cite the current pres­id­ent’s unseemly rush to kill the condemned as final proof that mean­ing­ful change must come. For if the Trump admin­is­tra­tion has estab­lished anything with its execu­tion spree these past few weeks it is that the federal death penalty is almost as broken as are capital regimes in states where execu­tions still churn out year after year.

The Trump admin­is­tra­tion selec­ted for execu­tion those federal death row pris­on­ers whose crimes offi­cials considered espe­cially hein­ous. Lisa Mont­gomery, for example, who is sched­uled to die next month, killed a preg­nant woman and then carved out of her stom­ach the baby (which mira­cu­lously survived). But Mont­gomery herself was a victim of serial sexual abuse start­ing when she was just a child. Alfred Bour­geois, killed last week by lethal injec­tion, commit­ted his crime two decades ago at age 18. His attor­neys tried for years to convince a judge that he suffered from intel­lec­tual disab­il­ity. There are no simple narrat­ives here.

For every word Attor­ney General William Barr uttered about the deprav­ity of the capital crimes that land people on death row there is a story like this one, about Brandon Bern­ard, who was executed earlier this month amid ques­tions of prosec­utorial miscon­duct at his long-ago trial. Racial bias in jury selec­tion. Inef­fect­ive assist­ance of coun­sel. The fail­ure of judges and jurors to hear or appre­ci­ate evid­ence of mental illness. Intel­lec­tual disab­il­it­ies that under­mine intent. Police or prosec­utorial miscon­duct. Unreas­on­able proced­ural hurdles. They all exist at the federal level more or less the way they do at the state level. 

Each death penalty system, in each juris­dic­tion, is broken, by some combin­a­tion of the same factors. So what I want to know is some­thing that today is unknow­able to those of us who are not part of Biden’s inner circle: Is he will­ing to exer­cise the power he has to abol­ish or limit the federal death penalty regard­less of the polit­ical price that Demo­crats might pay for that choice in upcom­ing elec­tions? Or does he believe that the argu­ments against capital punish­ment today are so obvi­ous and reas­on­able (and ulti­mately popu­lar) that the predic­able Repub­lican attacks that would follow his reforms would­n’t gain trac­tion?

Remem­ber that we are in the middle of a debate within the Demo­cratic party over whether progress­ive support for the poorly named “defund the police” move­ment actu­ally cost Demo­crats seats in the House in 2020. It is easy to predict that a Biden admin­is­tra­tion move to empty federal death row (for example) would imme­di­ately be met by the blunt criti­cism from the law enforce­ment lobby and other proponents of capital punish­ment. The congres­sional Repub­lic­ans press­ing Biden over capital punish­ment surely know that any mean­ing­ful reform he brings will come up on the campaign trail in purple districts in 2022.

If Biden acts boldly, the subsequent debate will not be hard to imagine. The death penalty lobby will try to portray the act as a step toward lawless­ness, as the elim­in­a­tion of a vital layer of protec­tion for law-abid­ing citizens just as murder rates are begin­ning to tick up again from gener­a­tional lows. That this is bunk makes it no less potent to this crowd. It does not matter that the deterrence argu­ment for capital punish­ment has long since been denuded or that the racial and geographic dispar­it­ies in the admin­is­tra­tion of the death penalty render it fatally flawed.      

But for every response we can easily predict there are many more we cannot answer unless and until Biden makes a move. For example, is grow­ing conser­vat­ive support for the abol­i­tion of the death penalty enough to offset the poten­tial polit­ical down­side to capital reform in close congres­sional districts? Does it matter anymore what tradi­tional conser­vat­ives think about the death penalty so long as Donald Trump favors it?

Biden has the power to do some­thing here that Pres­id­ent Obama failed or refused to do. Whether the pres­id­ent-elect decides to exer­cise this power, to spend this polit­ical capital in this fash­ion, will likely provide us with an early look at the way he’ll approach the post-Trump era more gener­ally. Either way, he had better do more than Obama did, which was to hem and haw and then let the clock run out.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.