Biden may thwart Trump’s aim to reinstate federal executions
The president is contemplating the use of his clemency authority to change federal death sentences to life imprisonment.
TroibNews 
President Joe Biden is set to use his clemency powers once more before his term ends next month, raising the hopes of those who oppose capital punishment for a significant move toward fulfilling his campaign promise to abolish the federal death penalty.
Biden has the authority to grant commutations that would convert the federal death sentences of 40 inmates into life imprisonment, which would significantly undermine former President Donald Trump’s plan to reinstate and expand the death penalty if he returns to power.
According to a source familiar with the situation, the Justice Department has quietly recommended that Biden grant commutations for most individuals on federal death row. This recommendation was first reported by The Wall Street Journal.
Additionally, the Justice Department is preparing to release findings from an internal review of the lethal injection protocol implemented by the Trump administration in 2019. This method, which involves administering a fatal dose of the sedative pentobarbital, has come under scrutiny for causing severe pain during executions.
Many experts and critics of capital punishment have expressed concerns that the adopted method, implemented due to shortages of other execution drugs, can result in extreme suffering for inmates during their final moments. Anti-death penalty activists believe the imminent DOJ report may further support the case for clemency.
“We hope the review will find that the problems with lethal injection are one additional reason as to why President Biden should grant clemency to death row prisoners,” said Ruth Friedman, who leads death penalty initiatives for federal defenders nationwide.
While the White House has not publicly commented on Biden’s clemency plans regarding the death penalty, anti-death penalty advocates report that discussions with the administration have intensified in recent weeks.
In non-capital cases, Biden has already taken significant steps in exercising his clemency power, commuting the sentences of nearly 1,500 individuals earlier this month, along with his controversial pardon for his son. The White House has indicated that more clemency actions are forthcoming before the end of Biden’s presidency.
“I think the problems related to the [execution] protocol, along with all the other problems systemic to the federal death penalty, are reasons President Biden could use to commute all the federal death sentences,” said Robin Maher of the Death Penalty Information Center, a nonprofit focused on capital punishment.
Should Biden choose to take this action, it could effectively prevent Trump from swiftly reinstating federal executions, which have been paused since Biden took office. During Trump’s first term, his administration oversaw a surge of executions, and he has indicated a desire to not only resume these practices but also expand the use of the death penalty during a potential second term.
As for the 40 inmates currently on federal death row, most were convicted in state courts, which limits Biden’s influence over their executions. However, governors in states like California and Pennsylvania have halted executions, affecting about one-third of the national death row population.
Biden’s clemency power is strictly limited to the federal death row inmates in Terre Haute, Indiana. If he opts for broad clemency, a key question remains whether he would commute all 40 sentences to life imprisonment or leave a few death sentences intact for particularly notorious offenders.
The Justice Department has not publicly discussed specific cases under consideration for clemency, but individuals sentenced to death for acts of terrorism may be less likely to receive commutations. High-profile cases in this category include Robert Bowers, Dylan Roof, and Dzhokhar Tsarnaev.
The majority of those on federal death row, however, are less widely known and were convicted of crimes related to drug trafficking or the murders of prison guards and fellow inmates.
A thorough review of capital punishment was initiated by Attorney General Merrick Garland in July 2021, coinciding with Biden's campaign pledge to impose a moratorium on federal executions upon taking office. Garland cited “serious concerns” about the application of the death penalty, highlighting its “disparate impact on people of color” and the “troubling number of exonerations” in capital cases.
The review has closely examined the 13 federal executions that took place during Trump’s final months in office, as well as state executions utilizing the single-drug method. While the review has been largely completed, it remains unclear whether White House officials are fully briefed on the findings.
“I know they’ve spent a good amount of time talking to stakeholders and experts in preparation for issuing that report,” Maher noted. “A meaningful review by DOJ will include a review of significant evidence from medical doctors and experts and court determinations that the use of the current protocol caused prisoners to experience extreme pain and suffering during Trump-era executions.”
“No one has found a method that doesn’t cause serious suffering,” Friedman stated. “There was evidence in several of the guys in 2020 and 2021 of flash pulmonary edema. The experts described that as being like waterboarding.”
The DOJ's review of the death penalty has extended over nearly three-and-a-half years, yet it faced few visible advancements. Last year, Deputy Attorney General Lisa Monaco ordered alterations to execution regulations initiated during Trump’s term. As the review process unfolded, the DOJ reported to a federal court that the project was still “ongoing” with no estimated completion date. However, DOJ lawyers indicated earlier this month that the work is nearing conclusion.
The result of this departmental review could serve as part of liberal efforts to ensure Biden’s administration is prepared to prevent a resurgence of capital punishment should Trump regain office. Nevertheless, without sweeping clemency actions by Biden, the review is unlikely to yield significant long-term changes, particularly if Trump’s administration seeks to resume executions.
Biden’s potential commutations would be immune to reversal by Trump, but the next administration could aggressively pursue death penalty prosecutions in future cases, a process likely to take several years.
Granting clemency to all 40 individuals on death row “would end the death penalty for a generation at the federal level,” remarked Robert Dunham of the Death Penalty Policy Project.
Dunham explained that if Trump's Justice Department pushed for new death penalty prosecutions, the lengthy process of conviction, sentencing, and appeals would limit any immediate impact before he leaves office in 2029.
Legal challenges against any modifications to the death penalty process by Trump or his appointees are highly expected, and the DOJ’s findings may contribute to these challenges. While the Supreme Court upheld execution efforts during Trump’s tenure, it has previously objected to reversals of government policies in other areas, which could open avenues for legal arguments against new Trump appointees failing to address concerns raised in the forthcoming review.
Though many criminal justice reform advocates welcome the anticipated completion of the DOJ’s review, some express disappointment, noting that it falls short of Biden’s 2020 campaign promise to eliminate the federal death penalty.
“Joe Biden has paused executions during his term, and he has said that he opposes the death penalty,” stated Wanda Bertram of the Prison Policy Initiative. “Now that's a strong statement of conviction, but one that he needs to back up in the last few weeks of his term.”
This week, a promising development for death penalty opponents emerged when Biden conversed with Pope Francis and confirmed plans for a visit to Rome next month, likely marking his last foreign trip as president. With the pope's firm opposition to capital punishment, Biden may wish to highlight a series of commutations that would resonate with Francis.
Before Trump’s first term, federal executions had been nearly non-existent for nearly two decades, with the last one occurring in 2003, primarily due to ongoing legal challenges regarding lethal injection methods.
Daniel Lee, a convicted murderer linked to white supremacist groups, was executed in July 2020, followed by more executions before Trump’s departure from office in January 2021, characterized by some as “Trump’s killing spree.” On the campaign trail, Trump has promised to reinstate executions, including calling for the death penalty for migrants involved in violent crimes against Americans.
In this critical moment, advocates see an opportunity for the Biden administration to make a lasting impact on the federal criminal justice system. “There’s a legacy that [the Biden administration] can have,” said Monifa Bandele with the Movement for Black Lives. “He vowed to transform the criminal justice system to make it equitable and effective, and this is his administration's opportunity to follow through on that campaign pledge.”
“She also pointed out that while he has pardoned individuals tied to privilege, he has overlooked those on death row, who are often people of color and individuals with disabilities. “Now,” she emphasized, “is the time to change that.”
Allen M Lee for TROIB News
Biden has the authority to grant commutations that would convert the federal death sentences of 40 inmates into life imprisonment, which would significantly undermine former President Donald Trump’s plan to reinstate and expand the death penalty if he returns to power.
According to a source familiar with the situation, the Justice Department has quietly recommended that Biden grant commutations for most individuals on federal death row. This recommendation was first reported by The Wall Street Journal.
Additionally, the Justice Department is preparing to release findings from an internal review of the lethal injection protocol implemented by the Trump administration in 2019. This method, which involves administering a fatal dose of the sedative pentobarbital, has come under scrutiny for causing severe pain during executions.
Many experts and critics of capital punishment have expressed concerns that the adopted method, implemented due to shortages of other execution drugs, can result in extreme suffering for inmates during their final moments. Anti-death penalty activists believe the imminent DOJ report may further support the case for clemency.
“We hope the review will find that the problems with lethal injection are one additional reason as to why President Biden should grant clemency to death row prisoners,” said Ruth Friedman, who leads death penalty initiatives for federal defenders nationwide.
While the White House has not publicly commented on Biden’s clemency plans regarding the death penalty, anti-death penalty advocates report that discussions with the administration have intensified in recent weeks.
In non-capital cases, Biden has already taken significant steps in exercising his clemency power, commuting the sentences of nearly 1,500 individuals earlier this month, along with his controversial pardon for his son. The White House has indicated that more clemency actions are forthcoming before the end of Biden’s presidency.
“I think the problems related to the [execution] protocol, along with all the other problems systemic to the federal death penalty, are reasons President Biden could use to commute all the federal death sentences,” said Robin Maher of the Death Penalty Information Center, a nonprofit focused on capital punishment.
Should Biden choose to take this action, it could effectively prevent Trump from swiftly reinstating federal executions, which have been paused since Biden took office. During Trump’s first term, his administration oversaw a surge of executions, and he has indicated a desire to not only resume these practices but also expand the use of the death penalty during a potential second term.
As for the 40 inmates currently on federal death row, most were convicted in state courts, which limits Biden’s influence over their executions. However, governors in states like California and Pennsylvania have halted executions, affecting about one-third of the national death row population.
Biden’s clemency power is strictly limited to the federal death row inmates in Terre Haute, Indiana. If he opts for broad clemency, a key question remains whether he would commute all 40 sentences to life imprisonment or leave a few death sentences intact for particularly notorious offenders.
The Justice Department has not publicly discussed specific cases under consideration for clemency, but individuals sentenced to death for acts of terrorism may be less likely to receive commutations. High-profile cases in this category include Robert Bowers, Dylan Roof, and Dzhokhar Tsarnaev.
The majority of those on federal death row, however, are less widely known and were convicted of crimes related to drug trafficking or the murders of prison guards and fellow inmates.
A thorough review of capital punishment was initiated by Attorney General Merrick Garland in July 2021, coinciding with Biden's campaign pledge to impose a moratorium on federal executions upon taking office. Garland cited “serious concerns” about the application of the death penalty, highlighting its “disparate impact on people of color” and the “troubling number of exonerations” in capital cases.
The review has closely examined the 13 federal executions that took place during Trump’s final months in office, as well as state executions utilizing the single-drug method. While the review has been largely completed, it remains unclear whether White House officials are fully briefed on the findings.
“I know they’ve spent a good amount of time talking to stakeholders and experts in preparation for issuing that report,” Maher noted. “A meaningful review by DOJ will include a review of significant evidence from medical doctors and experts and court determinations that the use of the current protocol caused prisoners to experience extreme pain and suffering during Trump-era executions.”
“No one has found a method that doesn’t cause serious suffering,” Friedman stated. “There was evidence in several of the guys in 2020 and 2021 of flash pulmonary edema. The experts described that as being like waterboarding.”
The DOJ's review of the death penalty has extended over nearly three-and-a-half years, yet it faced few visible advancements. Last year, Deputy Attorney General Lisa Monaco ordered alterations to execution regulations initiated during Trump’s term. As the review process unfolded, the DOJ reported to a federal court that the project was still “ongoing” with no estimated completion date. However, DOJ lawyers indicated earlier this month that the work is nearing conclusion.
The result of this departmental review could serve as part of liberal efforts to ensure Biden’s administration is prepared to prevent a resurgence of capital punishment should Trump regain office. Nevertheless, without sweeping clemency actions by Biden, the review is unlikely to yield significant long-term changes, particularly if Trump’s administration seeks to resume executions.
Biden’s potential commutations would be immune to reversal by Trump, but the next administration could aggressively pursue death penalty prosecutions in future cases, a process likely to take several years.
Granting clemency to all 40 individuals on death row “would end the death penalty for a generation at the federal level,” remarked Robert Dunham of the Death Penalty Policy Project.
Dunham explained that if Trump's Justice Department pushed for new death penalty prosecutions, the lengthy process of conviction, sentencing, and appeals would limit any immediate impact before he leaves office in 2029.
Legal challenges against any modifications to the death penalty process by Trump or his appointees are highly expected, and the DOJ’s findings may contribute to these challenges. While the Supreme Court upheld execution efforts during Trump’s tenure, it has previously objected to reversals of government policies in other areas, which could open avenues for legal arguments against new Trump appointees failing to address concerns raised in the forthcoming review.
Though many criminal justice reform advocates welcome the anticipated completion of the DOJ’s review, some express disappointment, noting that it falls short of Biden’s 2020 campaign promise to eliminate the federal death penalty.
“Joe Biden has paused executions during his term, and he has said that he opposes the death penalty,” stated Wanda Bertram of the Prison Policy Initiative. “Now that's a strong statement of conviction, but one that he needs to back up in the last few weeks of his term.”
This week, a promising development for death penalty opponents emerged when Biden conversed with Pope Francis and confirmed plans for a visit to Rome next month, likely marking his last foreign trip as president. With the pope's firm opposition to capital punishment, Biden may wish to highlight a series of commutations that would resonate with Francis.
Before Trump’s first term, federal executions had been nearly non-existent for nearly two decades, with the last one occurring in 2003, primarily due to ongoing legal challenges regarding lethal injection methods.
Daniel Lee, a convicted murderer linked to white supremacist groups, was executed in July 2020, followed by more executions before Trump’s departure from office in January 2021, characterized by some as “Trump’s killing spree.” On the campaign trail, Trump has promised to reinstate executions, including calling for the death penalty for migrants involved in violent crimes against Americans.
In this critical moment, advocates see an opportunity for the Biden administration to make a lasting impact on the federal criminal justice system. “There’s a legacy that [the Biden administration] can have,” said Monifa Bandele with the Movement for Black Lives. “He vowed to transform the criminal justice system to make it equitable and effective, and this is his administration's opportunity to follow through on that campaign pledge.”
“She also pointed out that while he has pardoned individuals tied to privilege, he has overlooked those on death row, who are often people of color and individuals with disabilities. “Now,” she emphasized, “is the time to change that.”
Allen M Lee for TROIB News
