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Biden vowed to end the death penalty. Can he keep his promise?

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·8 min read
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On the campaign trail in 2019, then-presidential candidate Joe Biden signaled a potential shift in his longtime support of the death penalty when he made an offhand comment to a voter about New Hampshire’s abolition of capital punishment.

“By the way, congratulations to y'all ending the death penalty here,” Biden said, according to Politico. He declined to elaborate further.

By 2020, though, Biden’s campaign had made it official. He no longer supported capital punishment and pledged to push for legislation to eliminate it at the federal level and incentivize states to do the same.

Now, about halfway into his first year as president, death penalty opponents want Biden to follow through on his promise to work toward abolishing capital punishment. And although the reformers acknowledge that there’s only so much the president can do, they believe there are a number of actions he can take if he truly means what he said in his campaign vow.

U.S. President Joe Biden speaks before signing an executive order in the State Dining Room of the White House in Washington, D.C., U.S., on Friday, July 9, 2021. Biden is pushing for wider competition across the U.S. economy, targeting three industrial sectors where his administration believes consolidation has led to higher prices in the sweeping executive order covering agriculture, technology and drugs. Photographer: Alex Edelman/CNP/Bloomberg via Getty Images
President Biden speaks before signing an executive order on July 9. (Alex Edelman/CNP/Bloomberg via Getty Images)

“The president can direct U.S. attorneys across the country not to pursue capital charges,” Lauren-Brooke Eisen, director of the justice program at the Brennan Center for Justice at New York University, told Yahoo News. “The president can urge Congress to provide federal incentives for state and local prosecutors to avoid seeking capital punishment.” The president can also commute the sentences of all 46 federal death row inmates to mandatory life without parole, she said.

“What’s fully in [Biden’s] power and singularly in his power is commutation,” agreed Ruth Friedman, director of the Federal Capital Habeas Project. “The last thing this administration should do is leave the 46 men on this row to potentially be [executed] by another administration, because that’s what we saw happen,” Friedman said. “Candidate Biden made promises. [But] what do those promises mean?”

But perhaps more permanently, Biden can back a bill in the House that would abolish the death penalty at the federal level and require that any person on death row be resentenced. The legislation is co-sponsored by Rep. Ayanna Pressley, D-Mass., an outspoken critic of capital punishment.

“The death penalty has no place in our society,” Pressley told Yahoo News. “State-sanctioned murder is not justice. And that’s why I took action to introduce a bill [in January] to end the federal death penalty.”

Rep. Ayanna Pressley (D-MA) speaks at The National Council for Incarcerated Women and Girls
Rep. Ayanna Pressley, D-Mass., speaks at a National Council for Incarcerated and Formerly Incarcerated Women and Girls rally near the White House on March 12. (Paul Morigi/Getty Images)

Pressley initially introduced the bill in July 2019, after then-Attorney General William Barr’s Justice Department announced it was resuming federal executions after an almost two-decade hiatus and a review of execution protocols that began under Barack Obama in 2014. Despite several 11th-hour court challenges, the federal government went on to execute 13 people during the pandemic, including three inmates in January, just before Biden took office.

“[It] was absolutely unprecedented,” said Friedman, who represented Daniel Lewis Lee, an Arkansas man who was executed last year in the Terre Haute, Ind., federal prison, for murdering a family of three people in 1996.

After Lee was executed on July 14, Friedman said it was “shameful” that the government proceeded with the execution when Lee’s counsel could not attend and when “the judges in his case and even the family of his victims urged against it.”

Friedman told Yahoo News in June that the executions were “illustrative of what is wrong with the federal death penalty and other death penalties.” Referring to convicted murderer Lisa Montgomery, whose attorneys said she was mentally ill, Friedman added: “You have a situation where you have intellectually disabled [inmates] being executed [and] cases where the more culpable person is serving life and the less culpable person is executed.”

TERRE HAUTE, INDIANA - JULY 13: A sign sits at the entrance of the Federal Correctional Complex where Daniel Lewis Lee is scheduled to be executed on July 13, 2020 in Terre Haute, Indiana. Lee was convicted and sentenced to die for the 1996 killings in Arkansas of gun dealer William Mueller, his wife Nancy, and her 8-year-old daughter Sarah. He is scheduled to be the first federal prisoner put to death since 2003.  (Photo by Scott Olson/Getty Images)
Daniel Lewis Lee, the first federal prisoner put to death since 2003, was executed in Terre Haute, Ind., in July 2020. (Scott Olson/Getty Images)

Friedman noted that racial disparities persist in death penalty cases across the country. According to a September 2020 report from the Death Penalty Information Center, inmates of color made up more than 57 percent of death row prisoners in the U.S. in 2019, up from roughly 46 percent in 1980.

The report also said most studies have found that the race of a victim is likely to affect whether a defendant is charged with a capital crime or is sentenced to death, but added that “there is less evidence that the race of the defendant by itself determines the likelihood of receiving a death sentence.”

Additionally, the organization reported in February that a total of 185 people were exonerated after being convicted and sentenced to death, out of roughly 1,534 inmates executed since 1977. Misconduct by police, prosecutors or other government officials occurred in 79 percent of cases involving the Black exonerees in these cases, compared with 58 percent in cases involving white exonerees.

“If planes crashed once for every three times they landed, we would be completely redoing or eliminating our aviation system,” Robert Dunham, the executive director of the center, told Yahoo News. “As an overall matter, [the death penalty] is grossly broken. And the defects appear to be irredeemable.”

These issues also seemed to trouble Attorney General Merrick Garland, who said during his Senate confirmation hearing in February that he had “great pause about the death penalty.”

“I am very concerned about the large number of exonerations that have occurred through DNA evidence and otherwise, not only in death penalty convictions but also in other convictions. I think it’s a terrible thing that occurs when somebody is convicted of a crime that they did not commit,” he said.

US Attorney General Merrick Garland waits for US President Joe Biden to sign an executive order regarding competition in the State Dining Room of the White House July 9, 2021, in Washington, DC. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
Attorney General Merrick Garland. (Brendan Smialowski/AFP via Getty Images)

Months later, Garland announced he was halting federal executions while the Justice Department reviews its policies and procedures.

“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 said in a statement. “That obligation has special force in capital cases.”

The White House said the moratorium was an “important step forward.” But death penalty opponents have pointed out that a moratorium is only a temporary pause, as evidenced by the one that preceded the string of executions under Donald Trump.

They also expressed dismay at the Justice Department’s role in the case against Boston Marathon bomber Dzhokhar Tsarnaev, who is currently fighting his death sentence. A federal appeals court tossed the sentence last year over concerns that the jury had been prejudiced against Tsarnaev. The Justice Department is arguing to reinstate the death sentence in the case.

Dzhokhar Tsarnaev is pictured in this handout photo presented as evidence by the U.S. Attorney's Office in Boston, Massachusetts on March 23, 2015.  REUTERS/U.S. Attorney's Office in Boston/Handout via Reuters FOR EDITORIAL USE ONLY. NOT FOR SALE FOR MARKETING OR ADVERTISING CAMPAIGNS. THIS IMAGE HAS BEEN SUPPLIED BY A THIRD PARTY. IT IS DISTRIBUTED, EXACTLY AS RECEIVED BY REUTERS, AS A SERVICE TO CLIENTS/File Photo
Boston Marathon bomber Dzhokhar Tsarnaev in 2015. (U.S. Attorney's Office in Boston/Handout via Reuters)

A White House spokesperson told the Associated Press in June that the Justice Department has “independence” in these cases, but added that Biden “believes the Department should return to its prior practice, and not carry out executions.” It’s unclear exactly where the Justice Department stands on the case now after the moratorium. The Supreme Court is expected to hear arguments in the case on Oct. 13.

Biden’s apparent lack of urgency on the issue has frustrated some death penalty opponents. And some advocates note that it may be a politically advantageous time for him to seize the issue: A Gallup poll released in June 2020 showed that a “record-low 54% of Americans consider the death penalty to be morally acceptable, marking a six-percentage point decrease since last year.” Forty percent said it was morally wrong.

Neither the White House nor the Justice Department responded to requests for comment for this story, but Pressley told Yahoo News that she expects the president to act, and she says he has even doubled down on his pledge.

US Attorney General William Barr speaks during a news conference to provide an update on the investigation of the terrorist bombing of  Pan Am flight 103 on the 32nd anniversary of the attack, at the US Department of Justice in Washington, DC, on December 21, 2020. (Photo by MICHAEL REYNOLDS/POOL/AFP via Getty Images)
Then-Attorney General William Barr at the Justice Deparmtent on Dec. 21, 2020. (Michael Reynolds/Pool/AFP via Getty Images)

“I’m in active conversation with the administration about this issue,” Pressley said. “In fact, recently, when I was at the White House, I had the opportunity to have a couple of minutes with President Biden, and this was the key issue that I raised. And during that meeting, he gave me his word that no person in America would be executed by the federal government under his watch.”

“I think [that] with the power of executive action, the stroke of a pen, President Biden has the authority [to] — and he should — issue an executive order to commute the sentences of those on death row to ensure a fair sentencing process,” Pressley said. “And direct the DOJ to not only no longer seek the death penalty, but to dismantle the death row facility at Terre Haute.”

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