Biden can’t unilaterally end the death penalty, but he can speed up its demise and use symbolism to signal a new era.
Ultimately, the death penalty is symbolic. It has never been used to punish more than a tiny fraction of the most serious murders, but it makes very long prison sentences appear lenient by comparison.
On the campaign trail, Biden said he’d work to end the federal government’s use of the death penalty. His record is mixed. As a senator, he pushed for a bill in which “we do everything but hang people for jaywalking,” but also fought to make sure death-row prisoners had good lawyers. He now argues that some serious crimes should still lead to life sentences without parole, which some consider worse than execution.
Although only Congress can fully abolish the federal death penalty, the president can do a great deal to speed its yearslong decline across the country.
Trump’s attorney general, William Barr, oversaw the most federal executions of any presidential administration since Eisenhower. A new attorney general could stop them immediately, and return to the Obama-era practice of seeking no executions.
A new attorney general could tell U.S. attorneys to only seek new death sentences for rare crimes like terrorism and mass shootings, which would still apply to defendants like Charleston church shooter Dylann Roof and Boston Marathon bomber Dzhokar Tsarnaev.
Biden could also initiate a moratorium on executions and halt all action while his administration studies the punishment’s use, which President Barack Obama promised but never delivered.
Most death sentences are handed out in state courts, but the president can push states to slow down executions, by withholding federal grants unless states guarantee that death row prisoners have access to DNA tests that may help them prove their innocence.
Robert Dunham, executive director of the Death Penalty Information Center, said the president could set up a project to help defend military veterans who commit serious crimes. “There is a unique federal interest in protecting people who have served the country,” he explained, noting many veterans develop PTSD or suffer head trauma in service and their lawyers struggle to get their military records.
If Biden wants to really opt for symbolism, he could follow the lead of California Gov. Gavin Newsom—who ordered that the state’s execution chamber be dismantled last year—and close the federal chamber in Terre Haute, Indiana. He could also aggressively pursue a mass clemency campaign, commuting the sentences of the more than 50 people currently on federal death row, if he believes that the death penalty system is too broken to be fixed.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
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