President Biden, when are you going to end the death penalty?
In the last year, 13 people were executed—they were executed by the federal government, but does that make it any better?
The death penalty is an abhorrent relic that should not exist in 2021. The state killing a person as punishment is just as morally repugnant as any other killing. Taking a life is simply wrong. That the death penalty is not imposed consistently—it’s rarely used and arbitrarily imposed—makes executions even harder to countenance. Capital punishment is nothing more than dangerous weapon for the government to utilize against its most defenseless citizens.
Former President Trump oversaw more federal executions than any other administration in the last 120 years. During the just four-year term, 13 people were executed. In the United States, since 1976, only 16 people have been executed by the federal government.
One of President Biden’s campaign promises was to finally and completely abolish the federal death penalty. While Attorney General Merrick Garland recently issued a moratorium pausing federal executions while they review the Trump administration’s capital policy changes, that provides little comfort for federal death-eligible defendants. Prosecutors can continue seek the death penalty in new cases, although the Biden administration has paused all executions. These divergent policies just do not make sense.
The Federal Death Penalty has Been Paused Before
In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court paused the death penalty, finding that it was unconstitutional as imposed at the time because it was not imposed equally for defendants under the 8th and 14th Amendments. The random and inconsistent application therefore made it cruel and unusual. Just four years later though, the Court lifted its pause on capital punishment in Gregg v. Georgia, 428 US 153 (1976), holding that the death penalty was not prohibited by the 8th Amendment as long as it was imposed in an impartial manner. Gregg required state legislatures to ensure that the death penalty’s imposition was not targeted to certain minorities or otherwise arbitrarily imposed, in which case, the Court found that it could be constitutional. While Gregg set more stringent requirements aimed at increasing fairness in administration of the ultimate punishment and limiting its use, many state executions resumed quickly thereafter (although none truly satisfied Gregg’s requirements— check out our next blog post!).
The federal death penalty remained prohibited until 1988, when Congress passed the Anti-Drug Abuse Act of 1988, which permitted the death penalty for a small class of crimes including organized crime or felony drug crimes. In 1994, Congress further expanded the reach of the federal death penalty to 60 offenses. See Federal Death Penalty Act. 18 U.S.C. § 3591.
The federal government still did not execute anyone for years, until 2001. And only three people were executed between 2001 and 2003. It took 17 years for the next federal execution, in July of 2020. During the waning months of the Trump administration, twelve more killings followed, with the last federal execution occurring just five days before President Biden’s inauguration.
This uneven application of the federal death penalty makes the arbitrariness difficult to ignore. (Check out our future blog posts to see why we think the death penalty is unconstitutional.)
President Biden’s Stated Opposition to the Death Penalty
According to President Biden’s campaign website, “Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. 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.”
The president had previously been an outspoken cry against the death penalty. Now that he has the power to change federal policy, though, his administration has opted for meek protestations and piecemeal decisions instead.
On July 6, Attorney General Garland issued a memorandum imposing a new moratorium on pending federal executions. The memorandum highlighted concerns around the arbitrary nature of the death penalty’s imposition and its disparate racial impacts. On that basis, the Attorney General paused federal executions pending review of federal capital policies.
This review includes research on pentobarbital sodium, a drug authorized for lethal injections, other methods of execution that states allow including firing squads and lethal gases, and the Trump administration’s last-minute changes to the Department of Justice Capital manual to increase the frequency of actual executions.
While this review and pause marks a definite departure from the last administration’s policy, it stops short of clearly stating what it suggests: that the federal death penalty is constitutionally and morally unsalvageable. Perhaps worse yet, it leaves the death penalty on the table for future use.
Still, the federal government’s actions suggest tacit agreement with the broader critique of capital punishment. The Department of Justice quietly reversed its decision to seek the death penalty in seven cases recently, although during the Trump administration, they had initially decided to seek the death penalty, should the defendants be convicted. After President Biden stepped in, they moved to withdraw these initial death penalty requests in their court filings. But the Department of Justice stopped short of issuing any press releases or other information about this drastic reversal of the Trump killing spree. The administration waited for the New York Times to report it.
While the DOJ’s current pause on executions is certainly better than the alternative, it leaves room for executions to resume thereafter. It also keeps death eligible defendants, and those on death row in limbo—no one knows whether these individuals will be executed or when they might have clarity on their fate. The Biden administration’s quiet whispers of its opposition to the death penalty are too soft spoken to have a real impact. Biden needs to come out with a policy that ends it once and for all.