In his State of the Union address this week, President Biden renewed his commitment to “restor[ing] the soul of this nation.” He laid forth a vision for a nation that “is working for more freedom, more dignity and more peace, not just in Europe, but everywhere.” As the President works to restore the soul of this country and forge his legacy, there is one opportunity to restore America’s soul that he must not miss: commuting federal death row.
The United States is an outlier amongst democracies in our retention of the death penalty – and in the percentage of our population that we incarcerate. Twenty-four states still have the death penalty, and three more states still have it on their books, but with a Governor-imposed moratorium on executions. And our federal government retains this tool of authoritarianism.
An authoritarian legal system is one that is intentionally designed, built, and used to empower one group of people and to oppress another. This has long been the defining feature of the U.S. criminal legal system, which was built to retain slavery through other means. From inception through modernity, our criminal legal system has disproportionately targeted, incarcerated, and executed people of color.
The death penalty is the pinnacle of an authoritarian legal system, wherein the state, under the guise of “justice,” executes its own people. But not just any people. The death penalty is used disproportionately against members of the most vulnerable and marginalized populations, with executions and the threat of more executions used to oppress everyone in that community. Think of Iran’s recent string of executions against Iranian protestors, or Saudi Arabia’s execution sprees of political dissidents, or the United States’ disproportionate use of the death penalty against people of color, Black men in particular.
It is no coincidence that the last few years have seen multiple execution sprees carried out at the federal and state levels in this country, as the Black Lives Matter movement rose and calls for criminal legal and police reform increased. In response to these efforts towards a multiracial democracy, the federal government under President Trump and multiple states ramped up executions.
In 2020, just months after the murder of George Floyd, which prompted millions of people across the globe to take to the street to call for police reform and racial justice, President Trump carried out an unprecedented execution spree, executing 13 people in 6 months (more than quadruple the number of federal executions carried out since 1988 when the federal government reinstated the death penalty). In several of these cases, prisoners were executed without a court ever giving substantive consideration to their claims of intellectual disability, incompetence, prosecutorial misconduct, racial bias, flawed forensic evidence, or other grave errors.
In 2021, President Biden was elected, Democrats took control of Congress, and there was a renewed push for legislation that would advance the promise of a multiracial democracy – police reform, voting rights, etc. At the same time, multiple conservative states carried out execution sprees, including a series of botched executions.
Whilst carrying out its execution spree, Oklahoma botched three consecutive executions in 2021. This was after the death penalty was put on hold in the state in 2014 due to a previously botched execution. Last month, the state reassessed its plan of executing 25 people in 2 years. The reassessment was not about whether to execute 25 people, but about how often to hold executions given the toll they take on the state employees who carry them out.
In May 2021, Texas conveniently refused for the first time to allow the media to watch an execution – preventing a detailed reporting about how Quintin Jones was executed. Just recently, after a gruesomely botched execution in that state, the Alabama Supreme Court gave the state permission to use as much time as the state needs to carry out an execution, meaning a botched execution could be prolonged over hours or even days without the state having to abort the execution.
President Biden cannot stop execution sprees by the state, nor can he singlehandedly abolish the death penalty at the federal level. What he can do – singlehandedly – is commute federal death row. He can prevent another federal execution spree and send a clear message to the states and to the world that the United States is moving towards abolition and away from authoritarianism.
There are currently 44 people on federal death row, 17 of whom are Black and 7 of whom are Hispanic. Black people make up thirty-seven percent of the federal death row population, more than three times their 12.1 percent of the national population. As research and data repeatedly make clear, this discrepancy is the result of entrenched bias in our criminal legal system, with the race of a defendant and the race of a victim being driving factors in whether someone accused of committing a capital crime is convicted and sentenced to death.
While the Department of Justice has put a hold on all federal executions, that hold can immediately be lifted by the next administration. To leave federal death row populated is to validate the federal death penalty and to leave this country susceptible to another federal execution spree like the one carried out in 2021 by President Trump and Attorney General Barr.
There is a political risk to commuting federal death row, as a commutation will certainly be rolled into conservatives’ predictable reliance on “soft on crime” allegations against their opponents. That said, we just came through a midterm election cycle when candidates campaigning on democracy repeatedly won despite “soft on crime” accusations being made against them. Voters are rejecting these false “soft on crime” allegations and for good reason. Study after study has demonstrated that the death penalty – and stiffer penalties in general - does not deter violent crime.
Moreover, public support for capital punishment is nearly at historic lows. Opposition to the death penalty is strongly bipartisan, with a majority of Republicans opposing the death penalty as it is administered. The two most recent states to abolish the death penalty were New Hampshire and Colorado, both purple states that achieved the milestone with bipartisan votes in 2019 and 2020 respectively.
President Biden was the first publicly anti-death penalty president to be elected in this country. He has made protecting our democracy a cornerstone of his presidency. Commuting federal death row could be a defining feature of his legacy. Or it can be an obvious missed opportunity to walk the talk of restoring the soul of the nation.
Russ Feingold is President of the American Constitution Society and former U.S. Senator from Wisconsin.