January 18, 2024

Do Not Give Ground on the Death Penalty

Russ Feingold President

President Biden is the first publicly anti-death penalty president to be elected in this country. That is not a small achievement. Even as this country made progress in abolishing the death penalty in previous decades, with individual states choosing to repeal it and federal courts imposing moratoriums on the federal death penalty for stretches of time, the country consistently elected presidents who publicly supported the federal government knowingly and intentionally executing people. President Biden’s election was an enormous symbolic milestone, but the impact of that milestone is suddenly in question.

Last week, federal prosecutors announced that they would be pursuing the death penalty in a criminal case—the first new capital prosecution since President Biden took office. Early in the administration, the U.S. Department of Justice imposed a moratorium on federal executions. While we applauded the announcement at the time, we also raised concern from the get-go that a moratorium could be lifted by a future administration that could immediately undertake another execution spree like that carried out by the Trump administration. We also cautioned that a moratorium on executions does not prevent new federal death sentences from being imposed, and that’s the situation now. If Attorney General Garland has sufficient concerns to impose a moratorium on executions, what sense does it make for his DOJ to pursue a prosecution that will only add to the federal death row’s population? Moreover, if DOJ is willing to pursue a new federal death sentence, what’s to say they will not pursue more?

Opposition to the death penalty is not about the details of any one case, but the values of the government applying it. No matter the facts of any given case, our leaders either believe that the criminal legal system’s use of state-sanctioned killings is wrong, or they don’t. Even in the abstract, the death penalty is unjust and undemocratic. It is exponentially more so when you factor in the realities of the American death penalty and the racism that defines nearly every phase of a capital prosecution and sentence. By pursuing the death penalty in a single case, again regardless of the facts of that case, the federal government validates state-sanctioned killings as a policy and a practice.

President Biden cannot single handedly abolish the federal death penalty. But he can have a meaningful symbolic impact by overseeing an administration that refuses to legitimize the death penalty and that maintains a permanent opposition to it. It takes a single case to undermine the power of that symbolism and the progress made by the administration’s opposition until now. This is why we are deeply disappointed to see the Department of Justice pursuing a new death sentence.

As a country, we are moving slowly but surely towards abolition. Eleven of the 23 states that have abolished the death penalty have done so in the past 16 years. This includes states with Republican legislatures and/or governors. The Biden administration exemplified this momentum, sending a message to the states and to other countries that the United States is moving in the right direction. The pursuit of the death penalty in a single case does not wipe out the impact of this country electing the first openly anti-death penalty president in its history, but it surely diminishes that impact.

President Biden still has time to reinforce his opposition to the death penalty and make it a legacy of his presidency - by using his constitutional authority to commute federal death row. The Constitution explicitly grants the President the authority to do this, without any role for Congress. Now more than ever, it is important for President Biden to reaffirm his commitment to death penalty abolition and to move this country decisively in that direction, without exceptions or caveats.