At his confirmation hearing before the U.S. Senate on Feb. 22, President Biden’s pick for attorney general continued the Democratic Party’s slow walk back from its historical support of the death penalty. In opposing the death penalty that they once favored, centrist Democrats demonstrate a fundamental truth about executions: They are all political.
Merrick Garland, a centrist on the U.S. District Court of Appeals for the D.C. Circuit, told senators, “I am very concerned about the large number of exonerations that have occurred through DNA evidence,” noting that the “most terrible thing happens if someone is executed for a crime they did not commit.”
The Biden administration that Garland will join has indicated a willingness to put a moratorium on federal executions. But as a senator, President Biden authored the 1994 Violent Crime Control and Law Enforcement Act. The act codified federal death penalty procedures for 60 offenses, including 28 newly created capital crimes. It wasn’t until 2019 that President Biden gave any indication that he was rethinking his enthusiastic support of capital punishment and executions.
If confirmed, Garland will also be a Johnny-come-lately to the death penalty abolitionist movement. Famously, he secured the death penalty in the federal prosecution of Timothy McVeigh, the white domestic terrorist who bombed the federal building in Oklahoma City, killing 168 people.
Pushed by progressive Democrats while crafting the 2020 Democratic Party platform, the Biden campaign committed to ending federal executions. A temporary moratorium carries the least political risk and requires the least political courage. If the next president is a Republican, he or she can immediately resume federal executions.
President Biden has executive power to commute the sentences of all 49 inmates on federal death row to life without parole. Future presidents cannot undo such commutations. He does not need approval from Congress; he does need political courage.
The Democratic Party platform also seeks to end the federal death penalty altogether and encourage states to do the same. Such reform requires passage in a closely divided Congress. Whether President Biden will spend any political capital to do so remains to be seen.
Make no mistake. President Biden’s decision to end capital punishment is strictly political. Research shows that the rational arguments in favor of executions—cheaper than life imprisonment, incapacitation, deterrence and closure for victims’ families—have no merit. What everyday proponents are left with is an irrational desire for revenge with our government serving as the killer in our name. What politicians are left with is political gamesmanship.
In his lame-duck days, former President Trump dealt very differently with two killers in federal custody. For purely political reasons, he executed one and set free the other one. Nicholas Slatten was serving a life sentence for his role in killing 14 people in Iraq in 2007, including a nine-year-old boy. At the time of the mass killings, Slatten worked as a Blackwater mercenary, sometimes called private security contractors. On Dec. 22, Trump pardoned him to score points with his far-right base.
Eight days before the inauguration of President Biden, the Trump administration executed Lisa Montgomery, the only woman on federal death row. Montgomery was a victim of repeated beatings and rape as a child and teen. Montgomery has eight types of mental illness, including traumatic brain injury, psychosis and dissociative disorder.
Montgomery was one of 13 federal inmates executed during the Trump Administration’s six-month killing spree. According to the nonpartisan Death Penalty Information Center, the federal government executed only three inmates in the 21st Century before last July. Although only 13 percent of Americans are Black, half of those executed by the Trump administration were African American. Before Montgomery, the last time the federal government executed a woman was 70 years ago. During the campaign and before Jan. 6, these killings were useful to Trump as a self-styled “law and order” candidate.
The killing spree of Trump’s final days gives impetus for progressive Democrats to push Biden to honor his commitment to ending the federal death penalty. As a centrist, Biden’s biggest political challenge is hanging on to the progressive wing of the party. A moratorium on federal executions is insufficient. Commuting sentences of all death row inmates to life without parole is an important and necessary first step.
Such a move will indeed invoke the ire of the Trump-controlled Republican Party and the minority of Americans who support the new GOP. But the majority of Americans—to the degree that they think about the death penalty at all—favor life in prison without parole over executions.
The Gallup organization polled Americans in Nov. 2019 about capital punishment. Regarding murder, Gallup asked people if they favored “life in prison with absolutely no possibility of parole” or “the death penalty.” Sixty percent of Americans favored the life-in-prison option, up from 45 percent who favored it in 2014. Other research shows that the life-in-prison option is more likely to be selected by Democrats in general and especially by persons of color, women and young people. In other words, it has become politically expedient for elected centrists in the Democratic Party to abolish the federal death penalty and push states to do the same.
At his confirmation hearing, Merritt Garland noted that executions have become so rare as to border on “arbitrary” and “random” punishments. In the 1970s, a very different U.S. Supreme Court held that the death penalty was unconstitutional because the government was applying the punishment arbitrarily.
In 2019, about 16,000 murders occurred in the U.S. In that same year, the states executed 22 inmates. The Eighth Amendment to the U.S. Constitution clearly forbids “cruel and unusual punishments.” Executions in 2019 were for crimes committed in prior years. However, these numbers give a rough sense of the arbitrary, random and unusual nature of executions.
Executions are inherently cruel; governments designed executions to strike fear and obedience among their citizens. The condemned often wait decades before the government kills them before witnesses in a highly ritualized ceremony. The government now bans public executions in the U.S. because such drunken carnivals bring out the worst in people. About seven percent of executions by lethal injection are “botched,” meaning that inmates suffer painful, protracted deaths. Lethal injection has nothing to do with humanity toward the condemned. It is favored because it’s not as upsetting to witnesses as viewing firing squads, hangings and electrocution.
My research shows that vicarious and actual sadism play important roles in the psychology of those willing to witness executions. You don’t have to sit on the U.S. Supreme Court to realize that the death penalty is “cruel and unusual” and thus unconstitutional. The 6-3 conservative majority, however, will never apply the Eighth Amendment to the death penalty. That’s not politically acceptable to their conservative ideology and the Republicans that put them on the court.
We make much of American exceptionalism. Indeed, we are exceptional in the ritualized killing of our people by the government. With 195 nations in the world today, Amnesty International reports that 106 had abolished capital punishment by the end of 2019. Another 36 countries don’t execute their citizens, even though the death penalty is still on the books. China has shown the most flagrant disregard for human rights, with over 1,000 executions a year. But the U.S. ranks sixth globally for the number of people we execute, trailing only China, Iran, Saudi Arabia, Iraq and Egypt.
President Biden has said much about his desire for bipartisanship. However, he will not find common ground with Republicans who still pledge fealty to the insurrectionist-in-chief encamped at Mar-a-Lago. The president’s greatest opportunity for bipartisanship is catching up with elected and rank-and-file progressives in the Democratic Party.