At first, hopes were high among criminal justice activists that Joe Biden, one of the key architects of mass incarceration, was turning a new leaf. That hope wouldn’t last long, though.
During the 2020 election, Biden renounced his past support for executions, saying that the mountain of evidence about wrongful convictions, often tainted with racism, had convinced him that “we cannot ensure we get death penalty cases right every time.”
Once elected, he became the first US president to openly oppose the death penalty, and the year after he was elected, the Justice Department put federal executions on hold following a historic execution spree under Donald Trump.
Attorney General Merrick Garland said at the time the DoJ would review its policies on the death penalty, noting his concerns about “the arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases.”
It was a liberal fever dream: after decades of a Tough on Crime consensus in Washington, two of the most powerful Democrats in the country were openly sharing their concerns that the death penalty is arbitrary, innaccurate, and often highly racist.
Then then dream was over. It seems these concerns haven’t been enough to convince them to do anything lasting to change the status quo. And in a matter of days, we could see the first death sentence ordered under the supposedly anti-execution Biden administration.
Last week, a jury ruled that a white supremacist who killed 11 people at Pittsburgh’s Tree of Life synagogue in 2018 could face the federal death penalty for his crimes.
If a jury ultimately decides that Robert Bowers should face execution, he will be the first person to receive a new federal death sentence during the Biden administration. The Tree of Life gunman’s fate is an illustration of the hedge the Biden administration has made on the death penalty, opposing the punishment in principle while allowing it to steam ahead in practice.
On one hand, after taking office, the Justice Department withdrew permission for death sentences in 24 out of 29 cases that began under past administrations.
On the other, the DoJ has still sought or defended death sentences in cases relating to the men responsible for the Tree of Life shooting, the Charleston church massacre, and the Boston Marathon bombing, even though victims’ families in all of these cases are divided over whether the government should execute these killers.
Joe Biden is nothing if not a savvy operator with a keen understanding of longevity in Washington. He’s been rising methodically through DC for decades and is now the oldest president in US history. It seems here he’s playing a waiting game, a play at securing an unearned criminal justice legacy.
He may be the first president to oppose execution, and, owing to the glacial pace of death penalty cases and appeals, it is quite possible no human beings will be executed in federal prison while he is president, even if he is re-elected.
But this is hardly a meaningful victory. Even if the lethal injection drugs flow through an IV under a different presidential administration, it was still the Biden administration and its prosecutors who filled the syringe.
As Robert Dunham, former head of the Death Penalty Information Center recently told The Independent, “The Biden executions will take place under future administrations, but make no mistake, they will be Biden executions.”
The White House has tried to square the circle by saying it opposes the death penalty, but respects prosecutorial independence in individual charging decisions. That’s being a bit coy.
Even presidents who respect prosecutorial independence make decisions on which officials they appoint, whom they ask to resign, and how they set the tone for the rest of the administration from the bully pulpit. Presidents can spend political capitol in public and pull the levers of government in private.
In other words, if Joe Biden really was 100 percent committed to an end to federal executions, in every case, he could do more.
In fact, he has the power to wipe away a generation of federal executions with the stroke of a pen.
As president, he has the power to commute the sentences of the 43 people currently on federal death row. And the federal government could use its considerable influence over state policy and funding to pressure states to abandon their own execution systems.
Whatever the reason, be it for political survival, or out of personal ambivalence, Joe Biden just isn’t willing to go there just yet. Maybe he hasn’t changed that much after all.
The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty - with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.