On his way to defeating Donald Trump, whose administration brought back the federal death penalty and went on an execution spree, Joe Biden said he’d work to end capital punishment.
Specifically, Biden’s 2020 campaign website said, under a bullet point titled “Eliminate 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.
Fast-forward to this week, when Oregon Gov. Kate Brown commuted death row sentences in her state. It’s the latest example of a state outpacing the federal government on the issue. That’s been true globally as well. At the United Nations on Thursday, a supermajority of nations voted for an anti-capital punishment resolution, but the United States was on the other side, aligning the country with ones it sees fit to criticize — like Iran and North Korea.
This all raises the question of when Biden will deliver on his campaign pledge, if ever.
Biden could empty federal death row with the flick of a pen if he wanted to. But despite his stated concerns about capital punishment, he hasn’t done so.
Of course, in a marked shift from the Trump era, the Biden administration hasn’t carried out any executions, and it possibly never will. Attorney General Merrick Garland imposed an execution moratorium last year and ordered a review of Department of Justice policies and procedures. The order followed a spree of executions that was legally blessed by the Supreme Court majority that Trump helped create.
But the fact remains that, unlike in a state such as Oregon, there are still people on federal death row — 44 in total, according to the Death Penalty Information Center, which notes that 27 states have the penalty, and that three of those states, including Oregon, have gubernatorial moratoria. Biden could empty federal death row with the flick of a pen if he wanted to. But despite his stated concerns about capital punishment, he hasn’t done so. Perhaps he’s waiting for Garland’s review, which a DOJ spokesperson told me Thursday is ongoing. Perhaps he’s waiting until his final days in office — that’s what Gov. Brown did — to convert those federal sentences to life imprisonment.
Imposing the moratorium last year, Garland echoed Biden’s pledge, noting that “serious concerns have been raised about the continued use of the death penalty across the country, including arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases.”
Yet, while the moratorium could be a step toward ending the federal death penalty, the Biden DOJ has continued to litigate some capital cases. It has defended death sentences on appeal against one of the Boston Marathon bombers, Dzhokhar Tsarnaev, and white supremacist church shooter Dylann Roof. At the trial level, the DOJ has chosen not to pursue the death penalty in some cases, but it has continued to seek it for Sayfullo Saipov, who allegedly killed eight people in a 2017 terror attack in New York.
Whatever the merits of seeking capital punishment in these cases or any others, the current administration’s actions — and inactions — are tough to fully square with Biden’s pledge. At this point, a Republican administration could pick up where Trump and Barr left off.
And there’s every reason to think that would happen if the GOP retakes the White House. Look no further than Sen. Tom Cotton’s response to Brown’s decision to clear her state’s death row. (The Arkansas Republican’s response is somewhat misleading, in that the 17 state death sentences were converted to life-without-parole, so the move doesn’t free them):
There is a better way to get convicted murderers off of death row… pic.twitter.com/Plrue3y2xB Florida Gov. Ron DeSantis, a potential Republican contender in 2024, has likewise supported capital punishment, expressing his disappointment that a state jury didn’t want it for convicted Parkland school shooter Nikolas Cruz. And while support for the punishment has been relatively lower in recent years, it won’t surprise people to hear that a Gallup poll published last month found a partisan divide on supporting it — 77% of Republicans versus 35% of Democrats (and 54% of independents). That divide plays out in the states, where executions usually take place (excepting the Trump-era federal spree). Mississippi executed a man on Wednesday; Texas, Oklahoma, Arizona and Missouri did so last month. One wonders, then, how Biden might “incentivize,” as he put it on the campaign trail, Republican-led states to “follow the federal government’s example” on capital punishment. Given his administration’s apparent dissonance on the issue, a better question might be: What example is he setting? Related:
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. 
