White House press secretary Karine Jean-Pierre told reporters last week that Biden was "very thoroughly" considering the clemency process and that more announcements about pardons and commutations would be made before he left office.
During his presidency, Biden has used his constitutional power to issue 26 pardons—including one for his son—and commute 135 sentences, according to the Department of Justice. He is reportedly weighing whether to issue preemptive pardons to protect aides and allies from being targeted by the incoming Trump administration.
Attorneys representing inmates on federal death row have submitted clemency petitions asking for Biden to commute their clients' sentences, with some arguing that their clients had received ineffective legal assistance and had trials marred by racial bias.
In some U.S. states, governors cannot grant clemency to a condemned inmate unless the pardon board recommends it. "That's not true in the federal system," Madeline Cohen, an attorney representing Norris Holder, a man on federal death row, told Newsweek.
She said she has submitted a clemency petition for Holder that is proceeding through the U.S. Office of the Pardon Attorney.
The president has "complete constitutional authority to commute any sentence, whether somebody asks him to do it or not," Cohen said. "But if you want to ask for a commutation, just like if you wanted to ask for a pardon, there's a process."
Cohen also said it was important to note that commuting the sentences of inmates on federal death row would not be the same as a pardon.
"They will still be guilty of their crimes, and they will still be held accountable for their crimes, and they will continue to be punished for their crimes," she said.
Ruth Friedman, an attorney who represents some federal death row inmates and represented Danny Lee, the first man executed by the Trump administration, also stressed that the men would be held accountable even if their sentences were commuted.
"These are not 'pardons' being discussed—commutation would mean life imprisonment without parole for these men," Friedman told Newsweek. "They would continue to be held accountable, but a great many problems would be acknowledged and addressed, and another distressing bloodbath by the next administration avoided."
The federal death penalty system "exhibits the same problems that have been identified in the states for years: pronounced racial disparities, geographic concentration in just a few areas, key evidence being missed such that even men with intellectual disability who are ineligible for capital punishment end up being sentenced to death and executed," Friedman said.
"It is for these and other reasons that many are calling on President Biden to commute all federal death sentences before he leaves office."
Granting clemency to some or all of the men on federal death row would not be unprecedented. Governors in eight states have commuted all death sentences under their authority since 1976, often citing systemic concerns, according to the Death Penalty Information Center.
Biden's 2020 campaign website stated he would "work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government's example."
But as president, he has taken no steps toward fulfilling that pledge. The Department of Justice announced a moratorium on federal executions in 2021. However, the Associated Press reported last year that the department was fighting to maintain the sentences of death row inmates even after pausing executions.
On Sunday, Pope Francis said he was praying for the sentences of death row inmates in the United States to "be commuted or changed."
"Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death," he said in an address.
On Monday, several letters urging the president to clear the federal death row before leaving office were made public. The letters called on Biden to fulfill his 2020 campaign pledge to end the federal death penalty and criticized the death penalty as arbitrary, unfair and rife with bias.
"We write to urge you to use your constitutionally provided power to commute the sentences of all individuals on federal death row," said one of the letters, signed by 130 civil and human rights organizations led by the American Civil Liberties Union.
The letter noted that the "only irreversible action" Biden can take to prevent Trump from carrying out federal executions is commuting the sentences of those on federal death row.
"Your ability to change the course of the death penalty in the United States will be a defining, legacy-building moment in American history. You have the power to lead with redemption and time is of the essence," the letter said.
In another letter to Biden, a coalition of current and former prosecutors and law enforcement leaders urged him to take "clear and lasting steps" to "ensure that the next administration will not execute the people currently facing death sentences in the federal system."
The first Trump administration's "rush to execute federal prisoners during a global pandemic demonstrated that a regard for justice, due process, and the rule of law did not guide or dictate their actions," the letter said.
"Their abandonment of these hallmarks of American jurisprudence—and stated interest in doing so again—requires a full commutation of all federal death sentences. In this moment, we ask you to lead by example and choose justice, mercy, and compassion for our nation."
