Joe Biden campaigned against the death penalty in his successful 2020 run for the presidency. His victory followed an unprecedented string of federal executions during Donald Trump’s first term. Trump’s ability to pick up where he left off depends on Biden, who has the power before he leaves office to commute federal inmates’ death sentences to life in prison.
The president previously expressed a desire for this outcome. Here’s what his campaign website said in 2020 about eliminating the death penalty:
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. These individuals should instead serve life sentences without probation or parole.
Biden will leave office without passing federal legislation eliminating the death penalty (so there’s no federal example for states to follow). But he can still make good on the last part, by commuting death sentences to life sentences.
It’s unclear if he will. Despite his campaign pledge, it’s hard to say Biden’s administration was fully against capital punishment. During his tenure, the federal government has both sought new death sentences and defended existing ones.
To be sure, Biden’s attorney general, Merrick Garland, imposed an execution moratorium in 2021, so the administration hasn’t been carrying them out. But the incoming Trump team will likely reverse course, with 40 people listed on federal death row.
Prior to July 2020, the federal government hadn’t executed anyone in 17 years. If that happens, then there may be court challenges to executions on a case-by-case basis, like during Trump’s first term. But the Supreme Court’s Republican-appointed majority helped his death penalty push right through to the end. On Jan. 15, 2021, just days before Biden took office, the high court reversed a lower court’s execution stay in the case of Dustin Higgs, making him the 13th federal prisoner executed in six months. Prior to July 2020, the federal government hadn’t executed anyone in 17 years. “Sadly, it is not surprising that the Court grants this extraordinary request,” Justice Sonia Sotomayor wrote, dissenting in the Higgs case. She continued: Over the past six months, this Court has repeatedly sidestepped its usual deliberative processes, often at the Government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions. With due judicial consideration, some of the Government’s arguments may have prevailed and some or even many of these executions may have ultimately been allowed to proceed. Others may not have been. Either way, the Court should not have sanctioned these executions without resolving these critical issues. The stakes were simply too high.
There’s little reason to think that this Supreme Court, whose GOP-appointed supermajority was bolstered on Election Day, would act differently in Trump’s second term. It’s up to Biden whether he wants to give Trump and his justices the chance. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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