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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
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.