Outgoing President Biden had a chance to clear out the federal death row—denying incoming President Trump of any opportunity to resume the death penalty. Biden, who pledged to end the federal death penalty during his term, instead fell short, commuting just 37 of the 40 people on death row.
Who were the three that he left on death row?
Dylann Roof, who killed many during a shooting spree at the Charleston church, was one. As was Boston Marathon bomber Dzhokhar Tsarnaev and also Pittsburgh synagogue shooter Robert Bowers.
One publication noted: “Biden’s decision aligns with his administration’s moratorium on federal executions, except in cases of terrorism and hate crimes, and has been praised by civil rights leaders for addressing the death penalty’s racial inequities.”
But as death penalty abolitionists—I consider myself one of them—would quickly note, ending the death penalty means ending it, especially for the worst of the worst. The problem with making exceptions is everyone draws the line in a different place.
Granted, Biden’s move avoids some of the problems with the death penalty, namely that it doesn’t merely operate on the worst of the worst but rather is imposed unequally across place and time, hitting those who are least able to put up a defense—disproportionately Black and Latino. Disproportionately punishing people who killed whites. Not to mention what we see all the time—problems with executing people with mental illness and those with credible claims of innocence, sometimes even untested DNA.
The decision by Biden to commute 37 people comes on the heels of his decision to commute 1500 sentences. This comes after many civil rights and justice reform leaders were criticizing Biden for failing to use his power of pardon and commutation sufficiently during his tenure as President.
Two weeks ago, Law Professor Rachel Barkow was extremely critical of the President.
I caught up with her on Monday after the announcement and she told me, “I’m really happy to see both these grants. The last major group would be the people currently incarcerated who have positive recommendations for a grant from DOJ. We know there are hundreds of those.”
She makes an important point here. None of the people in the group of 1500 and the group of 37 are leaving prison.
As she pointed out, “The recent major grants didn’t release anyone from prison (the CARES Act people were already out on home confinement and the death row commutations are now life sentences).”
She pointed out, “Biden’s record releasing people from prison with clemency is still thin—only 31 people in four years… so that’s the missing piece of the clemency puzzle.”
She was even more pointed a few weeks ago on a webinar talking about Biden’s record on pardons compared with other recent presidents, and she called it “abysmal.”
Barkow pointed out, “We had robust clemency for most of the nation’s history. And then the big dropoff is with the Reagan presidency. So even I’m going to judge him on the Reagan curve, so it’s going to be generous. So we’re going to take him from Reagan onward when the rates had fallen. If he stops today, he would have the lowest grant rate.”
At the time of the webinar (again this was prior to the 1500), there were 135 commutations, 13 of them were actually prisoner swaps, so that brought the number to 122.
“Out of the 122, 91 of those people were already out of home confinement, they had been released under the CARES Act, which was an emergency piece of legislation during the pandemic where vulnerable people who, if they’d been exposed to the virus while incarcerated, could get very seriously ill or die.”
As she explained, that’s the easiest, lowest hanging fruit for a presidential grant, because they are out. They are law abiding.
Even among the 1500—some of whom drew scrutiny, those folks were not in prison at present; they were also mostly released to house arrest and thus out and law abiding.
To me, it’s really important then to note, along with Rachel Barkow, that pretty much nothing that the president did will have any impact on public safety. There is no one who has so far been released from prison who wasn’t released before.
Unfortunately that leaves intact mass incarceration—both at the federal and the state levels. We have so many people who represent absolutely no threat to public safety who are still locked in a cage. We still have a tremendously unequal drug enforcement system—that figures to only get worse during the next administration.
At the same time, it would be foolish to dismiss the groundbreaking and historic nature of what Biden did—particularly since he played such a large role in helping to building the federal mass incarceration system.
As Anthony D. Romero, executive director of the ACLU said, “President Biden took a historic and courageous step in addressing the failed death penalty in the United States—bringing us much closer to outlawing the barbaric practice once again.
“By commuting the sentences of 37 individuals on death row, President Biden has taken the most consequential step of any president in our history to address the immoral and unconstitutional harms of capital punishment. With a stroke of his pen, the President locks in his legacy as a leader who stands for racial justice, humanity, and morality. This will undoubtedly be one of the seminal achievements of the Biden presidency.”
As Romero notes, “In 2020, President Biden made history as the first president to openly oppose the death penalty. Under his leadership, the Department of Justice acknowledged the death penalty’s disparate impact on people of color as well as the 200 people who have been sentenced to death and subsequently exonerated over the past five decades.”
Nevertheless, as the Biden presidency comes to an end, as criminal justice reforms have been turned back, the moment for progress has probably ended for now—and we will have to wait until the next wave for more lasting change.
