Will Biden administration end federal executions?
President Joe Biden’s opposition to the death penalty could slow the pace of federal executions and put pressure on states to follow his administration’s lead.
But without a clear commitment from the White House and Congress, that position can only be temporary.
A brutal rush of executions in the final, pandemic-ridden days of the former President Donald Trump administration after a 17-year lull prompted questions about the fate of the federal death penalty that has lingered even as public support for the sentence decreases.
Biden took an anti-capital punishment stance throughout his campaign — but experts say opposing the practice is not the same as pushing to repeal it.
In the last year, the federal government executed 13 people in a series of gatherings that infected inmates, prison staff, journalists and at least one spiritual adviser with COVID-19. The Associated Press reported the coronavirus outbreak connected to the executions last week.
As Biden’s inauguration loomed, the federal government executed Lisa Montgomery, the first woman on federal death row put to death in 67 years, on Jan. 13.
Death penalty support lowest in years
That pace of federal executions, especially in an election year, had not been seen since the 19th century, according to data from the Death Penalty Information Center. At the same time, support for the death penalty is at the lowest level in nearly half a century, according to an analysis of Gallup poll data by the DPIC.
The 2020 Gallup poll on U.S. attitudes toward capital punishment found that 55% of Americans say they support the death penalty, the center reported, which ties with 2017 for the lowest level of support in 48 years.
A further 43% of respondents said they oppose the death penalty, which the center reports is the highest level of opposition Gallup has recorded since 1966.
Although Biden’s record on harsh law-and-order legislation has softened in recent years, his team has largely been quiet on the death penalty since the campaign, even during the late-term execution spree that lasted until just four days before Biden’s inauguration.
The White House last week dodged questions about the new president’s plans on the death penalty, AP reported, even as officials told reporters the president may instruct the Justice Department to back off on seeking capital sentences.
A White House spokesperson on Thursday had no additional details on the plan to share.
“I believe that Joe Biden’s expression of opposition to capital punishment is genuine. I don’t think it’s just political rhetoric. He has, throughout his history in public office, changed his positions based on new understanding of the facts,” said Robert Dunham, executive director of the Death Penalty Information Center and former capital appellate lawyer.
A president doesn’t have the power to remove capital punishment as a possible sentence across the nation, Dunham said, especially as most capital sentences are handled at the state level.
A full nationwide end to the death penalty would require action by Congress, he said.
Democrats have the senate — is that enough?
The Biden administration’s website hints that those actions may be on the table, if the president wants to work with his former colleagues in the Senate.
“Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example,” a page on Biden’s criminal justice plan indicates.
Instead, he supports life sentences without the possibility of probation or parole.
In Tennessee, the state resumed executions for capital crimes in 2018 and has since executed seven people, most recently in February 2020 before pandemic considerations delayed others scheduled.
There’s no guarantee even a Democratic majority in Congress would support abolishing the death penalty.
Opposition to capital punishment is a mainstream Democratic belief at this point, Dunham said, while support for it is a mainstream Republican one.
“But there are a growing number of conservatives who oppose capital punishment, and there are Democrats who support it,” he said. “Whether he can forge that consensus depends on factors that are beyond his control.”
Last month, 37 members of Congress urged Biden in a Jan. 22 letter to support the Federal Death Penalty Prohibition Act, sponsored by Rep. Ayanna Pressley, D-mass., and Sen. Dick Durbin, D-ill, the AP reports.
Still, Biden could take steps to limit the number of executions that happen at the federal level — like emptying death row of current defendants with mass clemency orders or steering federal prosecutors away from seeking the death penalty in capital-eligible cases, Dunham said.
He could dismantle the execution chamber at the Terre Haute prison (similar to California Gov. Gavin Newsom’s decision in that state in 2019) or commute the sentences of everyone on federal death row.
But those decisions could only ensure a pause on executions while he is in office.
“A moratorium just kicks it down the road,” Dunham said.
Facing history of mass incarceration
Biden has inherited a series of decisions within his own party, some he championed while in office, that have continued to pass the buck on making a decision.
On the campaign trail, Democratic rivals blasted then-sen. Biden’s support of the harsh 1994 crime bill that he helped write, which many argue is to blame for the mass incarceration of racial minorities since then.
Touting the toughness of the crime bill in 1992, the then-senate Judiciary Committee chairman joked that it would do “everything but hang people for jaywalking.”
The application of the federal death penalty expanded significantly under the bill, which authorized 60 new death penalty offenses under 41 federal capital statutes, such as crimes related to terrorism, murder of a federal law enforcement officer and civil rights murders.
“If it were not for the huge expansion of the federal death penalty in the mid 1990s, most of the people who were the subject of this execution spree would not be on federal death row at all,” Dunham said late last year. “If it were not for the fact that the Obama administration granted only very limited clemency to the people on federal death row and defended the death sentences of some of the people who are currently slated for execution, we wouldn’t be having this federal execution spree either.”
Vice President Kamala Harris has been widely criticized by fellow party members for what criminal justice reform advocates classify as being too tough on the accused during her tenures as the San Francisco district attorney and as California’s attorney general before she was elected senator.
While she herself sought the presidential nomination, Harris answered those criticisms by saying she supports major changes to federal criminal justice.
Some say the fallout from the bill is more nuanced — the 1994 bill only one step in a decades-long increase of harsh criminalization and incarceration that disproportionately locks up minorities.
The roots of mass incarceration can be found in the late 1960s and early 1970s, with legislation that created, among other things, the RICO statute, which broadened the scope of federal law as the war on drugs began to take shape, according to a USA TODAY investigation.
In the 1980s, mass incarceration also got a boost from a series of bills that created presumptive detention for federal arrestees, essentially making bail nonexistent in the federal judicial system. At the same time, legislation passed establishing mandatory minimum penalties for drug offenses in the federal system and federal sentencing guidelines designed to promote uniformity.
Each of these steps only added more inmates to a prison system already disproportionately detaining Black Americans, USA TODAY found. The bill was passed as just one piece of wide and longstanding legislative support for carceral punishment.
Address to Congress key to predicting future
Federal capital sentences are always political, Middle Tennessee federal public defender Henry Martin said, and can come and go as a focus from the top. The 2020 execution spree matched the Trump administration’s law-and-order rhetoric, even if the punishments were not widely cited in campaign materials, he said. Blocking them may be similarly political for the Biden administration, he said. But at the heart, the conversation over the death penalty should start much earlier, several steps back from the death chamber, he said.
“The use of the prison system to the extent that we’re that we’re using is part of the racism that’s still deeply embedded in society,” Martin said. “We’ve got to address both.
We’ve got to be a less racist society. We’ve got to be a less punitive society.
“We’d have a so much healthier society if we were addressing the needs of people in communities where what we define as crime occurs — housing, healthcare, employment opportunities, training, education opportunities.”
All eyes will be on Biden’s comments during his first address to a joint session of Congress planned for later this month, including those of anti-death penalty advocates.
“If when he talks about his social agenda, he mentions the death penalty, then that will show a commitment to this,” Dunham said. “If he talks about all sorts of criminal legal reforms and omits the death penalty, I think that will tell us something else that’s important.”