Joe Biden should eliminate federal death row on his first day in office

Donald Trump has presided over more executions than the last 10 presidents combined and the most of any president since Franklin Delano Roosevelt. On the first day of his term, President-elect Biden should take steps to ensure that the federal government never again carries out such a bloodbath.

First day in office promises have become a staple of modern presidential campaigns. During the recently completed campaign, Joe Biden made many such promises. His list is long and includes issuing a mask mandate for all federal properties, rejoining the Paris climate accord and the World Health Organization, and ending President Trump’s “Muslim ban.”

All are immensely worthy immediate actions, but there is room for one more: ending federal death penalty prosecutions and commuting the sentences of everyone on federal death row to life in prison without parole.

I am not alone in thinking this matter urgent. In December, more than three dozen members of Congress called on the soon-to-be president to add the federal death penalty to his day one agenda.

Biden should take up their call to action. Doing so would be a fitting rejoinder to Donald Trump’s unseemly lame duck execution spree. It would also be a powerful signal of Biden’s intention to end racial discrimination in America’s criminal justice system.

Federal capital prosecutions are — like those at the state level — tainted by racism.

A Department of Justice study published in 2000 found significant racial disparities in the department’s own handling of capital charging decisions. It reported that from 1995 to 2000, minority defendants were involved in 80 percent of the cases federal prosecutors referred to the department for consideration as capital prosecutions. In 72 percent of the cases approved for prosecution, the defendants were persons of color.

In addition, white defendants were twice as likely as members of racial minorities to be offered a plea deal with life in prison as the punishment.

A Death Penalty Information Center report issued in September found more of the same. At the time it was published, there were 57 people awaiting execution in the federal system. Of them, 34 were people of color, including 26 Blacks. 

Stopping federal death penalty prosecutions is not enough. The new president should use his vast clemency power to spare the lives of all those remaining on the federal death row and dismantle it on Jan. 20.  

Mass commutation of death sentences has a long history in the United States. Governors of several states have acted to ensure that no one would be executed during their term in office or those of their successors.

Examples include Michael DiSalle, Ohio’s chief executive from 1959 to 1962, who commuted the death sentences of the five men and one woman on his state’s death row. In 1986 New Mexico Gov. Tony Ayala spared the lives of all five men on his state’s death row, saying the penalty was ”inhumane, immoral and anti-God.” And, in January 2003, Illinois Gov. George Ryan emptied his state’s death row by granting clemency to 163 men and 4 women. 

While no president has followed these examples, from the earliest days of the Republic presidents have commuted or pardoned people sentenced to death in the federal system.

In 1795 George Washington first used the clemency power to stop the executions of two men who had been sentenced to death for their role in leading The Whiskey Rebellion. In 1814, President James Madison spared the life of William Hull who was due to be executed for surrendering Fort Detroit to the British in the War of 1812.

In the 20th century, Harry Truman made the extraordinary decision to grant clemency to Oscar Collazo — a Puerto Rican nationalist who had attempted to assassinate him.

And three days before he left office in January 2017, President Obama commuted two death sentences.

While executive action on day one of the his administration cannot stop the federal death penalty forever (only an act of Congress could do that), it would be very much in line with what is happening to capital punishment all across the United States.

Governors in California, Oregon, and Pennsylvania have imposed moratoria on executions. And almost everywhere — even in Texas, long the nation’s leading death penalty state — death sentences and executions are way down, reaching 37-year lows in 2020.

Last year the Gallup poll found that a majority of Americans prefer life imprisonment to capital punishment for the crime of murder.

Yet ending the federal death penalty is not without its political risks. Republicans, led by Trump, will no doubt launch a tweet storm of protest. They will accuse Biden of being soft on crime and giving in to the radical left.

The new president should muster his courage and — with a stroke of his pen on Jan. 20 — turn his personal opposition to the death penalty into a formidable political act. He can go a long way to putting the federal government out of the killing business. And we can hope that soon, every state will have followed that example.

Austin Sarat is associate provost and dean of the faculty and William Nelson Cromwell Professor Jurisprudence and Political Science at Amherst College. He is author of numerous books on the death penalty including “Mercy on Trial: What it Means to Stop an Execution.”