A Chance for Biden to Make a Difference on the Death Penalty

Joe Biden’s presidency is ending sooner than he hoped, but he can still cement his legacy by accomplishing something no other president has: the commutation of every federal death sentence.

In 2020, Biden ran partly on abolishing the federal death penalty. His campaign website promised that he would “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example,” adding that death-row prisoners “should instead serve life sentences without probation or parole.” The Democratic Party platform that year also provided for the abolition of the death penalty, and shortly after Biden’s inauguration, a White House spokesperson confirmed that the president was indeed opposed to capital punishment.

But the actual practice of his administration has been mixed. In July 2021, Biden’s attorney general, Merrick Garland, imposed a moratorium on executions. “The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely,” Garland wrote in a memo. “That obligation has special force in capital cases.” Asked for comment on Garland’s announcement, a Biden spokesperson said, “As the president has made clear, he has significant concerns about the death penalty and how it is implemented, and he believes the Department of Justice should return to its prior practice of not carrying out executions.”

[Read: Can America kill its prisoners kindly?]

Biden’s administration has not carried out any federal executions, but neither has he instructed Garland to stop pursuing new death sentences, or to stop defending ongoing capital cases. Biden’s Department of Justice has continued pursuing death sentences for mass murderers and terrorists, including Dzhokhar Tsarnaev, the Boston Marathon bomber, and Dylann Roof, the Charleston, South Carolina, church shooter. And Biden has declined to advocate for legislation that would eliminate the federal death penalty. Opponents of the death penalty have criticized Biden for failing to honor his campaign promises concerning capital punishment.

So far, Biden has approached federal executions in the same way Barack Obama did: leaving the architecture for carrying out capital sentences in place but benevolently neglecting to use it. Donald Trump’s example, however, demonstrates how easy it is to resume executions even after a long gap. From 2003 to 2020, the federal government did not carry out executions. Then the Trump administration put to death 13 prisoners in a few months. Garland’s defense of current federal death sentences and pursuit of new ones has laid the groundwork for adding new prisoners to federal death row.

Perhaps Biden is hoping to leave abolition up to his successor. But that, too, would be a mistake. His successor could well be Trump, and his vice president is unlikely to act boldly in this area, as she isn’t reliably opposed to capital punishment. In 2004, when Kamala Harris refused as San Francisco district attorney to seek a death sentence for the murderer of a police officer, Democratic politicians skewered her decision publicly. Then-Senators Dianne Feinstein and Barbara Boxer as well as then–Oakland Mayor Jerry Brown all called for the death penalty. The experience was apparently formative for Harris, who reportedly became much more politically cautious as a result. Since then, Harris’s position on the death penalty has shifted several times. Right now, Harris won’t clarify whether she intends to authorize her DOJ to seek death sentences or advance current ones, and the 2024 Democratic platform has been stripped of references to capital punishment. I doubt Harris intends to resume federal executions, but neither does she seem primed to commute every sentence on death row, or to advocate vigorously for abolition.

So the opportunity is in Biden’s hands. If he really does abhor capital punishment as he has claimed, then he has several avenues through which to act with the last of his executive power. He could instruct his DOJ to withdraw its pending notice of intent to seek capital punishment in the 2022 Buffalo, New York, shooting case; rescind a Trump-era letter saying the FDA has no right to regulate the distribution of lethal drugs; and commute the death sentences of the roughly 40 prisoners on federal death row. The president no longer has to worry about the political ramifications of decisive work on capital punishment, and therefore has the freedom to act on his values and save dozens of lives. He ought to take this opportunity to keep his campaign promises, and to honor the dignity of human life.