Written by Victoria Valenzuela, originally published at Waging Nonviolence
Now that Joe Biden is a lame duck president, activists are holding him accountable to make good on his promise to end the federal death penalty during his remaining six months as president. Biden’s election campaign in 2020 had pledged to end the federal death penalty and incentivize the remaining 27 states that still allow executions to do the same. While he made history as the first president in the United States to openly oppose the death penalty, there has been no movement to actually end federal executions during his nearly four years in office.
With six remaining months in office, activists are calling on Biden to close Terre Haute, the federal execution facility in Indiana, and commute the death sentences of the remaining 40 people on the federal death row.
“Now that he has declared that he is not sitting for reelection, we have until January 20, when he leaves office, to encourage him to commute the death sentences,” said Abe Bonowitz, co-founder and executive director of Death Penalty Action.
Not long after the start of Biden’s presidency, Attorney General Merrick Garland announced a moratorium on federal capital punishment, which prevented anyone from being executed during Biden’s term. The president’s opposition to the death penalty is a shift from his earlier career, when he supported a crime bill in 1994 that expanded the reason someone could be executed for around 60 offenses.
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Bonowitz and other advocates, including over 300 organizations, are now calling on Biden to take action before the end of his presidency. The activists are raising what the majority of Americans, according to a Gallup poll conducted in 2023, already know — the death penalty is applied unfairly. The U.S. is one of 55 remaining countries in the world that still allows for executions. The death penalty has in cases been enforced with wrongful convictions, as there have been over 200 death row exonerations since 1973 including three this year, and it disproportionately affects Black people. Advocates, including people whose loved ones had been victims, have said that the death penalty does not bring closure and only perpetuates a cycle of violence.
The following interview has been edited for length.
Can you talk about the growing movement to call for an end to the death penalty, on both the federal and state level? How are people pushing this effort forward?
The movement to end the death penalty has been growing and has exhibited significant success since the early 2000s, when we implemented a strategy that focused on abolishing the death penalty in states where they were ready to end it legislatively. We’re on a steady trend for a number of years now where the number of executions are consistently under 30 per year. The number of new death sentences and even capital indictments are at consistently low levels. This is as contrasted to the late 1990s, when we saw nearly 100 executions a year for a couple of years and many death sentences. That trend is consistent. That’s how we know that we’re winning. There has been a consistent level of success in preventing death sentences in the first place, also in halting executions through overturning death sentences during the appeals process. The executions that we’re seeing now are those who have been on death row for a very long time. And there is deep concern with the status of the courts now. This is part of the damage that Donald Trump did to the court system and to this issue by appointing judges that don’t want to hear these kinds of arguments and are dismissing them out of hand. We’re seeing people who 10 years ago would have had relief from the courts, and now are seeing issues of innocence, issues of racism, issues of mental capacity being dismissed out of hand and those executions being allowed to go forward. That’s the danger that we’re in right now.
What are some of the issues with the death penalty and why is it important to abolish it?
There are many issues of deep concern with the death penalty. The death penalty is so expensive, that you have to kill in a county that can afford a death penalty trial. But there’s other factors that are at play as well, including the question of mental capacity, both mental illness and intellectual disability. Even though the U.S. Supreme Court has disallowed the execution of people with intellectual disability, that’s still happening. The Supreme Court is not seen fit to revisit that and set a hard and fast “this IQ we can kill you or at a lower IQ we can’t.” Consistent among the arguments is, of course, the question of racial disparity and economic disparity. In most cases, we’re seeking the death penalty for people that don’t have any money to defend themselves, which means that society is paying for both the prosecution and the defense. You have the issue of race, especially if you are a person of color who has killed a white victim, you’re more likely for them to seek a death sentence and get a death sentence in your case.
As to wrongful convictions, we’re up to 200 people whose cases have been overturned and they’ve been exonerated and freed. If we had a Supreme Court that would look at this issue fairly, we might take a challenge to the death penalty on an eighth amendment claim being the prohibition of cruel or unusual punishment. And that’s kind of the unusual part because the basic sense of fairness would suggest that everybody who commits a certain level of crime deserves a certain level of punishment. But that’s not the way it works. And fewer than 99 percent of the people who could get a death sentence, do not end up with a death sentence.
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All of those things matter — money, race, politics, geography and the quality of your defense — more than the severity of the crime. And that’s why if we believe in the words that are carved into the face of the U.S. Supreme Court building, which are “equal justice under law,” well, we don’t have that. And that’s something that should be of deep concern to everybody.
When he made his campaign, Biden became the first president in history to openly oppose the death penalty. What has he done during his presidency to uphold this?
Everybody was surprised when, during his original presidential campaign, Biden’s policy position articulated that he would work to end the federal death penalty and incentivize states to not use the death penalty. We all got excited about that. We were prepared at the beginning of his administration after he was elected, to see him commute all of the death sentences on the federal death row. We are aware that there was an executive order ready to be signed, but that never got put in front of him. That fell to the side as far as what Joe Biden was going to do during his presidency. That doesn’t mean that we have stopped. We have submitted as recently as June 26, a letter to the White House signed by over 300 organizations calling for the president to do the things that he can do, which include commuting all of the people who have current death sentences, commuting, changing their sentences to death by incarceration, or also called life without parole.
We asked him to urge Congress to pass the Federal Death Penalty Prohibition Act, which is sponsored by Ayanna Presley in the House and Richard Durbin in the Senate, and about 100 other current congress people. The president can’t, by himself, abolish the death penalty, but he needs a bill put on his desk that he can sign. And that’s Congress. He needs to encourage them to do that. The president can rescind some of the executive changes that were made by executive order to the death penalty. Things like they declared the federal death sentences could be carried out in any prison in the country that had the facilities for executions, using any method that was available rather than what has been always carefully prescribed, he can pull that back.
One thing Joe Biden did was he appointed an attorney general who knows that this administration doesn’t want any executions. This is important, because the way the federal death penalty works is the Attorney General sets the execution dates. Attorney Gen. Marrick Garland, during his confirmation hearing, declared that this administration has a policy against executions, and it doesn’t matter what he believes personally. Joe Biden made sure that he doesn’t have any death sentences coming to him. We’re making sure that he’s hearing from people that he needs to do this before he leaves office. Now that he has declared that he is not sitting for reelection, we have six months until January 20, when he leaves office, to encourage him and implore him to commute the death sentences.
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That will do one of two things depending on who’s elected as the next president. Either it’ll just take it off the plate of Kamala Harris, if she becomes the nominee and is elected, then she won’t have to worry about executions coming in front of her that she has to decide whether or not to grant clemency on. On the other hand, if Donald Trump is elected president, then we’re going to expect a lot of executions to happen unless there’s nobody there to execute. That’s what Joe Biden can do, commute all those sentences and make sure that nobody is there on death row for Donald Trump to execute. Donald Trump became the most executing president in this country since President Roosevelt in the 40s. Roosevelt had 16 executions over 13 years, Donald Trump had 13 executions over six months. That will be a deep concern. Our goal, in addition to fighting every execution that is scheduled at the state level, is to encourage the president to commute all of those death sentences prior to leaving office.
In a letter to the president, Death Penalty Action and about 300 hundred other organizations asked Biden to order the federal execution chamber in Terre Haute, Indiana, be demolished, direct the Department of Justice not to pursue the death penalty and to commute the death sentences of the more than 40 inmates currently on federal death row. Can you talk about that letter?
We have not had a response yet. The letter was hand delivered by our board chair, Rev. Sharon Risher. She made sure to hand deliver our letter, which she is the lead signer on but it’s also signed by now 311 organizations asking the president to commute the death sentences, reverse some of the changes that were made under the Trump administration, order the Attorney General to back off of death penalty prosecutions and also to demolish the death house, literally take a bulldozer and tear that building down. Its entire purpose is to carry out executions. And we think that they could tear that down. And that would be a highly symbolic act to declare his intention, and other governors have done something similar in Oregon, and Governor Newsom in California, when he first took office ordered the dismantling of their execution chamber. That’s a very symbolic action that was within the power of the president.
This story was produced by Campaign Nonviolence.
Victoria Valenzuela is an independent journalist in California covering social justice and criminal justice issues. In the past, she has been published in The Guardian, BuzzFeed News, LAist, Bolts, and more. She is also a staffer at ScheerPost and has previously worked with the National Association of Hispanic Journalists, The Marshall Project, and was part of ProPublica’s emerging reporter cohort. She is currently finishing graduate studies at the University of Southern California.
