October 12, 2023

Honoring World Day Against the Death Penalty

Russ Feingold President

This week, ACS honored World Day Against the Death Penalty as we continue to work towards death penalty abolition in the United States. I have been thinking at length this week about what Professor John Bessler said on this week’s Broken Law podcast episode, that the death penalty, in addition to everything else, is an act of psychological torture.

The act of executing a person is violent, inhumane, and should be unlawful, full stop. In addition to that, the death penalty involves the threat of death stretched out over the course of several years, sometimes decades. Under international law, death threats, including those made during custodial interrogations, and mock executions are considered acts of torture. If that’s the case, the perpetual threat of death that is inherent in capital punishment should also be recognized as an act of torture.

As Professor Bessler points out on our podcast, the Supreme Court consistently mishandles death penalty cases by considering only whether the method of execution constitutes cruel and unusual punishment. The Court has never considered whether the prolonged psychological torture of living for years—20 years on average for death row inmates in the United States —with the looming threat of death is cruel and unusual. I encourage everyone to listen to Christopher Wright Durocher’s conversation with Professor Bessler on Broken Law as we continue to work together to abolish the death penalty.

With the current Congress, it is highly unlikely that we will see viable federal legislation to abolish the federal death penalty any time soon. However, there is something that President Biden can singlehandedly do and that is commute federal death row. At ACS, we continue to urge President Biden to exercise his constitutional power to issue a blanket commutation, as an affirmative step in the direction of abolition and as an affirmation of our democratic values.

The Department of Justice has imposed an ongoing hold on all federal executions, but that hold can be lifted on day one of a future administration. To leave federal death row populated is to not only validate the federal death penalty, but it is also to leave the door wide open for another federal execution spree like the one carried out in the waning months of the Trump administration.

We are a little over one year away from the next presidential election. Nobody knows how the election will turn out. This is one reason ACS urges the White House and Senate to fill as many federal court vacancies as possible now, lest they risk leaving vacancies to be filled by a future administration that cares less about the rule of law and about diversifying the federal court. Similarly, we urge the President to use the constitutional authority he alone has to commute federal death row, lest we risk a future administration undertaking another federal execution spree.

At a time when our democracy is up against rising threats of authoritarianism, commuting federal death row would send a strong message about our country’s values. The U.S. narrative on the death penalty is dominated right now by the egregious executions being carried out by select states. And, in addition to these horrors, there are an estimated 2,400 people on death rows throughout the country who live every day with the threat that the state will one day kill them.

It is not enough for the federal government to merely put a hold on federal executions. We need the federal government to move the country in the direction of abolition and counter the message being sent by the actions of a few select states. President Biden can do this by commuting federal death row, thereby lifting the torturous, perpetual threat of death, and permanently preventing 42 executions.

President Biden was the first publicly anti-death penalty president to be elected in this country. Commuting federal death row would be a defining feature of his legacy and an important step in securing democracy and defeating authoritarianism.

Criminal Justice, Death Penalty, Death Penalty