Will the Biden administration really end the federal death penalty?

Civil rights organizations are urging Biden to act and abolishing federal executions is within the realm of legislative possibilities for his first term, but it’s yet to be seen if the Biden administration cares deeply enough about the issue to fight for it.

President Joe Biden campaigned on a promise of reversing many of his predecessor’s policies and executive actions. In the final year of former President Donald Trump’s presidency, one of those actions was resuming capital punishment at the federal level. Before 2020, the last person to be executed by the United States’ federal government was Louis Jones Jr. in 2003.

After the Justice Department, under the direction of then-Attorney General William Barr, lifted the de facto moratorium on capital punishment, the US government carried out 13 executions, the most under any president since Grover Cleveland in the 19^th century. Trump was also the first president since Cleveland to execute prisoners during his “lame duck” postelection period.

For much of his career, Biden supported the death penalty, but that shifted in recent years. Eliminating the death penalty was among Biden’s campaign promises, with his campaign website explaining:

“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.”

Democrats in Congress have introduced legislation that would end capital punishment at the federal level. Additionally, Biden has nominated former judge Merrick Garland to be his Attorney General. Garland, who was confirmed by the Senate as the new AG on March 10, has expressed skepticism about the death penalty, citing statistics that show there is racial bias in its practice.

Like much of Biden’s agenda, though, ending federal executions will face a partisan fight in the Senate where the chamber is evenly split 50/50 between Democrats and Republicans. It will require getting all 50 Democrats to get onboard, including the party’s most conservative member, Senator Joe Manchin.

Civil rights organizations are urging Biden to act and abolishing federal executions is within the realm of legislative possibilities for his first term, but it’s yet to be seen if the Biden administration cares deeply enough about the issue to fight for it. At the very least, the Justice Department can return to the moratorium, but that leaves the door open for a future president to resume the practice.

The Federal Death Penalty Prohibition Act

On January 11, US Representative Ayanna Pressley introduced the H.R. 262 bill, entitled the “Federal Death Penalty Prohibition Act.” Co-sponsored by 73 of her Democratic colleagues, the bill is currently being reviewed by the Subcommittee on Crime, Terrorism, and Homeland Security. The bill would prohibit future death sentences and require current death row inmates to be resentenced.

If the bill moves out of committee and to the full House, it has a decent chance of being passed since the Democrats have a majority in the chamber. The bill would then be taken up in the Senate, led by Senate Judiciary Chairman Richard J. Durbin, where it would face a much harder challenge.

The current bill is essentially the same as H.R. 4052, which was introduced into the House by Pressley in 2019. That bill never received a vote in the full chamber after being referred to the same subcommittee as this current bill.

Pressley’s bill is also similar to legislation introduced into the House by her Democratic colleague, Representative Adriano Espaillat. Like Pressley’s bill, Espaillat’s recently introduced H.R. 97 (“Federal Death Penalty Abolition Act of 2021”) is an update of a bill, H.R. 4022, which he introduced in 2019. Both Pressley and Espaillat’s bills have strong support from members of their party.

That support, though, may not translate to legislative action unless the Biden administration makes it a priority. If Biden does decide to follow through on this campaign promise, he will have to unify the progressive and centrist wings of his party, a feat that has already proved difficult on the issue of increasing the minimum wage.

Broadly, the public favors the death penalty for murder, though opposition to the practice has been going up in recent decades. Gallup polling in 2019 found that 60% of Americans thought a life sentence was a better punishment for murder than capital punishment.

The death penalty in the United States

In July 2020, Daniel Lewis Lee, became the first person executed by the federal government since Jones in 2003. Lee, a white supremacist, had been on death row for robbing and murdering three people since being convicted in 1999. He maintained up until his death that he was innocent.

The US is one of a dwindling number of countries that has yet to prohibit the death penalty. Among its allies, the US is the only country that still uses capital punishment. In numbers of executions at both the federal and state level, the US was behind only five countries in 2019: China, Iran, Saudi Arabia, Iraq and Egypt.

There are currently 48 men and no women on federal death row. That includes 21 white males, 19 Black males, seven Latino males and one Asian male.

Among them are Dylann Roof, the white supremacist who killed nine Black members of a South Carolina church in 2015, and Dzhokhar Tsarnaev, the Boston Marathon bomber. Tsarnaev’s death sentence has been overturned on appeal, but that reversal has not yet been finalized.

Currently, 22 states and Washington, DC do not permit capital punishment. Many state legislators have introduced bills to abolish the death penalty altogether, including in Arizona, California, Florida, Georgia, Kansas, Kentucky, Missouri, Montana, Ohio, South Carolina, Texas, Virginia, Washington and Wyoming.

There are currently no federal executions scheduled for 2021, but there are seven scheduled state executions, four in Texas and three in Ohio. Another Ohio death row inmate, Steven Cepec, who was scheduled to be executed on March 24, has had his date removed from the schedule but still faces a death sentence.In 2008, the US Supreme Court ruled in Kennedy v. Louisiana that the death penalty was not a permissible punishment for any crime that did not result in the death of a victim.

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