Michael Conroy/AP Photo
Protesters against the death penalty gather in Terre Haute, Indiana, July 15, 2020.
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
After a 17-year hiatus, the federal government is executing people again. Over two days in December, it put both Brandon Bernard and Alfred Bourgeois to death by lethal injection. These executions were the first to take place during a lame-duck period in more than 100 years. Nor is the Trump administration finished carrying out death sentences. Dustin John Higgs, who tested positive for coronavirus last week, is scheduled to be executed in January. So is Lisa Montgomery, who would be the first woman executed by the federal government in more than 70 years. Last month, ProPublica reported that the Trump administration was also fast-tracking a rule to reintroduce such federal execution methods as firing squads and electrocutions.
During the waning months of the Trump administration, the federal government has begun executing people at a high rate. Beginning this July, the government has carried out ten executions, which comes to more than 20 percent of the total number of federal executions since 1927. For the first time, the federal government has carried out more executions in a calendar year than all of the states combined. Chris Geidner, director of strategy at the Justice Collaborative, called it a “macabre end-of-office execution spree.”
Before this July, there had been a 17-year pause in federal executions for a number of reasons, including the lack of suitable drugs and pending litigation alleging that the means of execution were unconstitutional. For nearly two decades, both George W. Bush and Barack Obama chose not to push the issue.
But death penalty opponents say that presidents can do more than refrain from carrying out executions. As president, Joe Biden could commute death sentences to lesser sentences, they say. While presidents don’t have the power to end the death penalty unless Congress passes new laws, they can effectively end federal death row by granting clemency. (Regrettably, advocates note, President Obama commuted just two death sentences.)
Representative-elect Cori Bush recently published an op-ed in Time calling for just such a commutation policy. “When we marched this summer for George, Breonna, and Ahmaud saying ‘Black Lives Matter,’ we didn’t just mean ending police violence,” said Bush in a statement to the Prospect. “When we fought for justice for Mike Brown Jr. in Ferguson, we weren’t just calling for the arrest of the officer who killed him. We were fighting to save the next Black life that would be unjustly taken—be it on the streets of Missouri or on death row. The death penalty is rooted in bias and racial violence. It isn’t an accident that Black and brown people are overrepresented on death row and in our carceral system at large. That is due to failed policy choices.” Bush also promised to join Rep. Ayanna Pressley’s bill to end the federal death penalty upon her swearing in next month.
Biden may indeed be open to the idea of clemency in cases of capital punishment. But when pressed if he would commit to using the pardon power as a way of commuting federal death sentences, his spokesperson demurred. “The President-Elect opposes the death penalty, now and in the future, and as president will work to end its use,” transition spokesperson TJ Ducklo wrote in a statement to the Prospect. As the Associated Press reported, Biden has also not said if he will immediately pause executions upon taking office in January.
DESPITE THIS EQUIVOCATION, should Biden take this step, it would be a notable departure from his predecessors and set a new tone on criminal justice. “He can send a pretty strong signal immediately with the stroke of a pen,” said Keisha Hudson, managing director of the Justice Collaborative, a criminal justice advocacy organization. Hudson was previously an attorney for ten years with the Federal Defender’s Capital Habeas Unit, representing clients on death row.
Public opinion has moved on the death penalty. Support for the death penalty, at 55 percent, is now at its lowest level since 1972, according to a Gallup poll this year. In its year-end report, the Death Penalty Information Center noted that the total number of executions carried out this year is down, despite the federal execution spree. This year also saw the fewest new death sentences in the modern era, a record low of 18.
“There’s a significant change from the past,” Hudson said. Twenty-two states have abolished the death penalty, and another 12 have not carried out an execution in over a decade.
Support for the death penalty, at 55 percent, is now at its lowest level since 1972.
The racial justice movement, and especially the protests this summer in the wake of multiple police killings of African Americans, has also spurred greater public awareness of the racial disparities in executions. The pandemic has also shown how racist systems disparately affect Americans. “With the pandemic, with the racial justice movement, people are really understanding race and racism in its impact across all spheres, [and] especially in the criminal justice system,” Hudson said.
Hudson also noted the electoral victories of reform candidates for district attorney, running on platforms that call for abolishing the death penalty. Should Biden commute death sentences to a lesser sentence, Hudson predicted, there would be broad-based support. Congress currently has before it a bill to end the federal death penalty, introduced by Rep. Ayanna Pressley (D-MA) in response to the Trump administration’s sudden onslaught of federal executions.
Robert Dunham, executive director of the Death Penalty Information Center, said that as in other areas of the criminal justice system, the death penalty is applied disproportionately against the most vulnerable or those who have had a “defective” legal process.
“Everything that’s wrong with criminal cases is worse with death penalty cases,” Dunham added. The disparity shows up in prosecutorial discretion, with predominantly white prosecutors more likely to pursue the death penalty when the victim is more like them, and less likely to pursue capital punishment when the defendant is more like them. It shows up in the supposedly “race neutral” jury selection process, which disproportionately strikes potential jurors who are Black and female because jurors can be excluded based on their views about the death penalty. (Such views correlate with race, sex, and other demographic factors). “So you end up with African Americans, Latinx, women, and faithful Catholics being disproportionately excluded from death penalty juries,” Dunham said. “That produces death verdicts that disproportionately involve victims that the jurors identify with and against defendants the jurors are more fearful of. That process skews toward a white-lives-matter preference.”
Biden, Dunham pointed out, should not get a pass on Trump’s execution spree. The crime legislation Biden co-authored in the 1990s expanded the basis for death penalties and helped make the latest executions possible. “At that point, [Biden] believed that the death penalty was a deterrent and that expanding the death penalty would fight crime,” Dunham said. “With an additional 30 years of experience, that’s proven to be nonsense. Joe Biden has always been in the mainstream of the Democratic Party and his views in the 1990s were mainstream Democratic Party views. The dynamics were completely different then than they are now.”
Nor should Obama get a pass, Dunham said, because his administration defended the use of the death sentence during the appellate process in the case of Lisa Montgomery—who is scheduled to be executed next month.
The execution spree this year is also, at least in part, a reflection of a Supreme Court stacked with pro–death penalty justices. A lawsuit pending since 2005 challenged the federal execution process. Most of those sentenced to death had already gone through the appeals process, were plaintiffs on the lawsuit, and had stays of execution. During the Obama administration, the government told the Court it didn’t have the drugs so there was no sense continuing to litigate the issue until there was a new process.
The execution spree this year is also a reflection of a Supreme Court stacked with pro–death penalty justices.
According to regulatory law, a new protocol for carrying out executions requires an administrative process in which prisoners can learn the details, the public can have input, and prisoners can appeal. But the Trump administration “deliberately bypassed” this step and upon finding new drugs, submitted a revised protocol without going through the public comment period. “When [Attorney General William Barr] was AG under [George H.W.] Bush, he went through the Administrative Procedure Act to promulgate new regulations,” Dunham explained. “So he knew exactly how to do it and what he was supposed to.” But Dunham asserts that Barr knew he could bypass these administrative requirements this year because a conservative Court wouldn’t blink. Dunham believes Barr not only violated the APA, but arguably violated the Federal Death Penalty Act and the Controlled Substances Act, which requires a prescription for drugs like the ones now used in executions.
Confronted with a Court that favors the death penalty, and the possibility of a divided Congress, the Biden administration has little chance of persuading Congress to legislate an end to federal capital punishment. Instead, Biden could opt to commute such sentences. Alternatively, he could always just follow his predecessors and decline to carry out particular executions, but his vocal opposition to the death penalty suggests he may go further and commute them all.
“If your goal is to end the death penalty and you’re being obstructed by a legislature that isn’t even willing to consider the issue, then you have no choice if you’re serious about your rhetoric,” Dunham said of Biden. “You have no choice but to exercise clemency.”
