President Joe Biden has officially commuted 37 of the 40 federal death sentences — all except for those of Robert Bowers (the Pittsburgh Tree of Life synagogue killer), Dzhokhar Tsarnaev (the Boston Marathon bomber) and Dylann Roof (the Charleston, South Carolina, church shooter). Those receiving commutations will remain in prison, probably for life, but the federal government will be unable to execute them. The bulk commutation is a core presidential power, it sits comfortably within the tradition of Anglo-American clemency practice, and it’s politically shrewd. It’s also the right thing to do, especially following the controversial pardon of Hunter Biden.
Those receiving commutations will remain in prison, probably for life, but the federal government will be unable to execute them.
The justification for the bulk commutation begins with what would have happened had Biden done nothing. President-elect Donald Trump has long wrapped his public appeal in cartoonish capital punishment rhetoric — from full-page ads urging death for the “Central Park Five” to campaign promises to kill drug dealers. Once in office, Trump pressed the envelope further. The Bureau of Prisons executed 13 people during the last six months of his first administration, which matched the number from the prior 70 years. In fact, before Daniel Lewis Lee succumbed to a lethal dose of pentobarbital in the summer of 2020, the federal government had not executed anybody in 17 years. It’s not just that prior administrations couldn’t convert death sentences into executions; they also didn’t seem to want to.
Trump and his Justice Department were different. Attorney General William Barr framed the first five scheduled executions as a solemn duty to victims, but, according to sworn testimony from the associate deputy attorney general, the department did not make “a specific effort to reach out to the victims’ families of the 5 that were selected.” And in Daniel Lewis Lee’s case, officials refused to amend the lethal injection calendar to allow the victim’s family to attend the execution. Those family members both opposed Lee’s execution and were worried about traveling during the Covid pandemic.
I’ve previously argued that federal executions operate like vice signals that shape and cohere MAGA, forcing a contrast with (what is depicted as) the left’s virtue-signaled ambivalence and moral equivocation. I’ve described the Trumpist framing as one in which “righteous state killings represent strength and resolve, a clear line separating good and evil, and belief in free will over structural disadvantage.” For Trump, federal executions are a grim exercise in political branding; and they are handpicked political fights that he wins.
A new volley of executions would have been a grisly show of political opportunism, and Trump already had a new emcee: Pam Bondi, his pick for attorney general. Bondi was Florida’s senior law enforcement officer, and killing prisoners was a defining part of her professional portfolio. Florida executed 28 people during her tenure, and she played a pivotal role in managing the state’s death penalty through the aftermath of a Supreme Court ruling invalidating longstanding state practices. She’s a staunch law-and-order conservative, and she will arguably arrive in Washington with more execution experience than any attorney general in American history. There’s no mystery about the execution push that awaited capitally sentenced federal prisoners in the absence of Biden’s intervention.
Biden dissolved that gruesome timeline with the bulk commutation. Article II of the Constitution endows the president with “Power to grant Reprieves and Pardons for Offences against the United States.” This so-called pardon power involves all forms of clemency, and it includes presidential authority to commute sentences for federal crimes. The Constitution, moreover, permits no legislative restrictions.
There is a rich presidential history of using the pardon power in bulk, and it traces back centuries. President George Washington awarded amnesty to those who had participated in the violent Whiskey Rebellion. When President Thomas Jefferson took office in 1801, he pardoned anyone who had been convicted under the Alien and Sedition Acts. President Warren Harding commuted the sentence of Eugene Debs and granted clemency to 23 other war critics convicted under the Espionage Act. President Abraham Lincoln is perhaps the most famous practitioner of bulk clemency. He pardoned military prisoners convicted by courts martial of desertion and sleeping on duty — offenses then punishable by death — and he gave presidential pardons to former Confederates in exchange for loyalty oaths to a fragile Union. More recently, President Jimmy Carter gave unconditional pardons to over 100,000 men who evaded the draft during the Vietnam War.
President Abraham Lincoln is perhaps the most famous practitioner of bulk clemency.
Clemency norms are also fixed by state practices, since the death penalty is primarily a state-level institution. (During the modern death penalty era, which started in 1976, states have executed 1,588 people; the federal government has executed 16.) State-by-state history reveals that there’s nothing unusual about bulk clemency for death-sentenced prisoners. In the last 20 years alone, governors from five states have used bulk clemency power to clear death rows: Kate Brown (Oregon), Jared Polis (Colorado), Martin O’Malley (Maryland), George Ryan and Pat Quinn (Illinois), and Jon Corzine (New Jersey). In each state, the bulk commutations followed formal death penalty moratoria or prolonged periods of execution inactivity.
In short, Biden’s bulk commutation is consistent with longstanding practice both under the federal Constitution and across other American jurisdictions. Indeed, the essential legacy of Anglo-American clemency power is mercy — the executive (royal) prerogative to sand down the sharpest edges of criminal punishment. Clemency power does present problems involving favoritism for political allies and personal friends, but those risks aren’t part of the calculus here. Tsk-tsking about restrained clemency power feels particularly silly at after Trump has wiped out sentences for political allies and as he promises mass pardons for Jan. 6 rioters.
Biden’s bulk commutation is also an exercise in politically savvy loss avoidance. Death-sentenced prisoners are not automatically queued for execution. DOJ must select the unlucky ones, usually when there’s no pending litigation, and the BOP needs to update execution protocols and maintain efficacious drug supply for lethal injections. More legal challenges follow, producing a unique cycle of public drama: community remembrance of traumatic violence, painful signatures of grief and loss, and climactic legal battles in the news.
Biden has spared Democrats and aligned reformers the political costs of these execution media cycles, which creates cultural space for the Trumpist coalition to nurture and project the crude moral certainty that was so successful with the 2024 electorate. Trump and his allies use the execution cycles to position themselves as tough-on-crime protectors of American safety — rallying political communities against progressive ideas about mercy, human frailty, moral luck and the fallibility of legal institutions. Democrats win these cycles by avoiding them. Like any American political executive, modern presidents are drawn to clemency on their way out; otherwise, it’s too politically disruptive. But here there is no incoming Democratic executive to inherit the fallout. The electorate’s memory — and the derived window of political salience — is far too short for any long-term political repercussions. Finally, one hopes that there is a simple moral imperative at work. Biden must know that bulk commutation was the right thing to do. The American death penalty is suffused with bias based on both the race of the defendant and the race of the victim. Substantially elevated risk of wrongful executions persists because of junk science, false confessions, jailhouse snitches and unreliable eyewitness testimony. Large meta-studies show rather definitively that the death penalty doesn’t deter future offending relative to other severe punishments. And executions are so temporally separated from sentencing — on average, by 20 years — that people strapped to the gurney bear little moral resemblance to the people who committed the crime decades earlier. There are also moral problems unique to the federal death penalty. DOJ typically seeks death sentences only in federal districts that sit within capitally active states, so federal death sentences exhibit an unsettling geographic arbitrariness. Furthermore, there is a troubling temporal arbitrariness in both federal death sentencing and federal executions. That’s because the likelihood of federal death sentences now depends quite heavily on which political party holds the presidency. And the more it depends on that, the less it depends on personal culpability and fairness. In pardoning his son, Biden cited the disproportionate criminal justice response. If unjust treatment of those committing crimes was an authentic concern, then Biden had an obligation to look beyond the moral horizon of his own family’s interests. And he fulfilled that obligation, at least in part, by sparing 37 people that the federal government would otherwise kill.
Lee Kovarsky
Lee Kovarsky is the Bryant Smith Chair in Law at the University of Texas, where he also co-directs the University's Capital Punishment Center. He teaches and writes about civil procedure, criminal procedure, federal jurisdiction, and the death penalty. His academic work has been cited across the federal and state judiciaries, and he writes a leading case book on habeas corpus. He regularly represents death-sentenced prisoners as they approach their executions, having argued numerous cases over the last two decades – including at the U.S. Supreme Court. He was elected to the American Law Institute in 2020. 
