President Joseph Biden is the first occupant of the Oval Office in American history to openly and publicly oppose the death penalty and advocate its abolition.
That is a remarkable sign of how much the national conversation about capital punishment has changed over the last several decades. Just think back to the 1988 presidential campaign, when former Massachusetts Gov. Michael Dukakis’ abolitionist stance almost single-handedly sank his bid.
Or consider Biden’s own evolution on the death penalty. As a senator from Delaware, he championed the 1994 omnibus crime bill by proudly observing, “It provides 53 death penalty offenses. … We do everything but hang people for jaywalking in this bill.”
But in 2020, he joined every one of the Democratic candidates for president in making opposition to the death penalty a part of his campaign.
America’s death penalty system, at both the state and federal level, is unjust. Innocent people are falsely convicted of capital crimes. Race and class play important roles in determining who among the convicted get a death sentence and who actually gets executed. The means we use to put people to death are also riddled with problems and have been likened to torture. All of these problems were on ghoulish display during former President Donald Trump’s execution spree in the waning days of his presidency.
Biden pledged during his campaign that he would stop federal executions, propose legislation to abolish the death penalty at the federal level, and provide incentives for states to follow suit. He recognized that America’s death penalty system is rife with error and unfairness. “Because we can’t ensure that we get these cases right every time,” candidate Biden tweeted, “we must eliminate the death penalty.”
Now that he is president, what will he do to translate his campaign rhetoric into effective action? With an enormously challenging array of problems before him, will the president push ending the death penalty to the top of his agenda, or will it fade into the background?
One early test came with the choice of Biden’s nominee for attorney general.
The selection of Judge Merrick Garland, though admirable and reassuring in many ways, did not signal that ending capital punishment would be high on the new administration’s priority list. Before becoming a judge on the D.C. Circuit Court of Appeals, Garland played a leading role in the federal death penalty prosecution of Timothy McVeigh for the 1995 bombing of a federal building in Oklahoma City.
And once on the appellate bench, he did not establish a particularly progressive record on criminal justice issues or offer suggestions that he opposes the death penalty.
But there is a difference between being a judge and being an AG under a president opposed to the death penalty. During his confirmation hearings, senators should give Garland the opportunity to clarify his views about the death penalty and explain how he will implement the president’s anti–death penalty agenda.
It’s also telling the way that agenda came and went on the first day of the Biden presidency. In December, 35 Democratic members of Congress urged Biden to “end the use of the federal death penalty on your first day in office.”
They laid out an ambitious plan of actions that Biden could take without needing congressional approval. They urged him to “prohibit United States Attorneys from seeking the death penalty, dismantle death row at FCC Terre Haute [by granting clemency to everyone awaiting execution], and call for the resentencing of people who are currently sentenced to death.”
It is not yet clear where capital punishment reform sits on the list of executive actions planned for the next few weeks. Acting quickly would highlight the depth of his opposition to capital punishment at a time when the horror of Trump’s last-minute executions are all too fresh on the minds of Americans.
Earlier this month, Rep. Ayanna Pressley and Sen. Richard Durbin announced their intention to introduce the Federal Death Penalty Prohibition Act of 2021 in the new Congress. This legislation would prohibit capital punishment by the United States government and also require resentencing of those already on death row. At the time of its announcement, the Biden transition team did not take a position on the bill.
No doubt there will be additional chances for legislative and executive action, including using federal funding as a lever to get death penalty states to act. And Biden should be ready to take advantage of them.
It will also be crucial for the new president to use his bully pulpit to educate Americans about the death penalty’s inequities and inhumanity. Popular support for the death penalty has steadily declined, and Biden can make a powerful case for its abolition through his own example.
Biden is also in a position to draw from his faith and remind Americans that, as Pope Francis recently wrote, the “dignity of the person is not lost even after the commission of very serious crimes.” The death penalty, said the Pope, is “inadmissible because it is an attack on the inviolability and dignity of the person.”
Moving from campaign promises to effective action to end the death penalty will not be an easy task for the Biden administration, and it will not be without its political costs. But Americans are primed and waiting for the kind of leadership that this country’s first death penalty abolitionist president can provide.
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