Dear Reader,
Over the past four years, Joe Biden’s position on the death penalty has gone from Abolition to Wait to Sometimes to Go for It to Abolition, Actually, Except for a Few. The death penalty is not the hot-button political issue it was during the 1980s and 90s, so Biden’s evolution (or, depending on your perspective, devolution) had gone largely unnoticed – until his stunning endgame commutation of the death sentences of 37 of the 40 total federal death row inmates. Now, with one bold and controversial move, Biden has mostly fulfilled a campaign promise that it seemed he’d all but abandoned.
To understand this unfolding political and legal drama, we need some historical context. Over the past half-century, dozens of federal defendants have been convicted and sentenced to death, but very few have actually been executed. After a death sentence has been imposed, the decision to proceed with an execution rests largely within the Justice Department’s discretion. No federal inmate was executed between 1963 and June 2001, when Oklahoma City bomber Timothy McVeigh was put to death. The federal government executed one other inmate later in 2001, then another in 2003. But for the next decade and a half – again, nothing.
That changed in July 2019, towards the end of Donald Trump’s first administration, when then-attorney general Bill Barr announced that the Justice Department would resume executing certain prisoners who had been convicted and sentenced to death. DOJ accordingly carried out thirteen executions – all by lethal injection administered at the Bureau of Prisons facility in Terre Haute, Indiana – from July 2020 through January 2021, the last just four days before the end of Trump’s term.
As a presidential candidate in 2020, Biden promised he’d be different. His official platform provided unequivocally, “Democrats continue to support abolishing the death penalty.” The Biden-Harris 2020 campaign website promised, “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.” The position was bold, clear, and absolute.
Six months after Biden took office, his administration took a tentative step in the direction of his campaign pledge. In July 2021, Attorney General Merrick Garland ordered a moratorium on executions. The Justice Department, he announced, would study the issue and propose next steps.
Then reality intruded. In October 2021, the case of Boston Marathon bomber Dzhokhar Tsarnaev came before the U.S. Supreme Court. Tsarnaev, convicted in 2014 and sentenced to death in 2015, had his death sentence reduced to life in prison in 2020 by a federal appeals court based on procedural errors. Under Trump, DOJ appealed to the Supreme Court, seeking to reinstate the death penalty. The case was pending when the Biden administration took over and, in June 2021, the Justice Department reaffirmed that it was seeking to reinstate the bomber’s death sentence. Turns out, it’s easier to oppose the death penalty in broad principle than in a grisly real-world terrorism case.
The White House, plainly realizing the tension between Biden’s stated campaign position and his Justice Department’s effort to reimpose the death penalty on the Marathon bomber, went into spin mode: “President Biden has made clear that he has deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of justice and fairness. … The President believes the Department [of Justice] should return to its prior practice, and not carry out executions.” Biden’s new position, it seemed, was something like: “I’m against the death penalty, unless it already has been imposed and then thrown out, in which case it’s fine to ask the Supreme Court to reinstate it, but nobody should actually be executed anyway.” The Court ultimately did as Biden’s Justice Department asked, and reinstated Tsarnaev’s death sentence.
After two-plus years of procrastination and equivocation, DOJ went full throttle and affirmatively sought imposition of the death penalty in two cases, one in mid-2023 involving an anti-semitic slaughter at a synagogue in Pittsburgh and another in 2024 on a racially-motivated mass murder in a Buffalo grocery store. These announcements came when Biden was gearing up for his 2024 re-election campaign and tacking to the middle. It seemed his turnabout was complete. The administration of the same man who campaigned by vowing to end the death penalty wound up actively pursuing it.
Undeterred by Biden’s seeming reversal on the death penalty, dozens of prominent death penalty abolitionist groups – including the ACLU and the NAACP Legal Defense Fund – called earlier this month on the President to issue a blanket commutation of the death sentences of all 40 current federal death row inmates. It seemed like an unrealistic (perhaps impossible) ask, given Biden’s gradual but unmistakable movement away from his original abolitionist pledge. But then, shockingly, with one stroke, Biden spared nearly everyone on federal death row – 37 of the 40 inmates, everybody but Tsarnaev, the Pittsburgh synagogue shooter, and a person who murdered nine black parishioners at a South Carolina church. (DOJ is still seeking the death penalty for the Buffalo supermarket shooter, who has not yet been sentenced). Biden’s position, he explained in a formal statement, is that “we must stop the use of the death penalty at the federal level,” except in cases involving “terrorism and hate-motivated mass murder.”
Nobody can un-do these presidential commutations. They’re permanent. While Trump has vowed to expand application of the federal death penalty when he retakes office next month, there’s no way for a president to reverse a prior grant of clemency. And the defendants cannot be re-tried or re-sentenced without violating their double jeopardy rights. So the 37 recipients of Biden’s commutations will serve life sentences in prison but they will not be executed by the federal government.
The President issued a statement of condemnation of the murderers, and he announced the move with support from a coalition of law enforcement officials, religious and civil rights leaders, and even some family and friends of the victims who had been murdered by the death row inmates. Biden is savvy enough to recognize that a statement only goes so far. He plainly understands that he, and the Democratic Party, now take permanent political ownership of all 37 cases that he has commuted, and the brutal facts underlying them: the kidnapping and murder of a 12-year old girl, the murder-for-hire of a Naval officer, and others similarly unimaginable.
It took nearly four years for Biden to arrive back where he started. Through all the stops and starts and reversals, he has now honored his original bold campaign pledge, for the most part. And while the move will come at a substantial political cost, the President has, in the end, returned to his original, bold statement of principle.
Stay Informed,
Elie
