Biden did the right thing granting clemency to 37 federal death row inmates

Over his long and storied career, Joe Biden has consistently led with compassion, empathy, and a willingness to consider new information and changed circumstances in furtherance of America’s best interests. All of these defining qualities were manifest when he took the historic action of commuting the death sentences of nearly everyone on federal death row to life in prison.

With this courageous action, President Biden has lived up to his promise as the first president to openly oppose capital punishment and secured his legacy as a champion of racial justice, compassion, and fairness.

We have seen stark evidence of the many reasons why capital punishment is an inherently flawed system and a failed public policy. Two recent state cases provide examples — that of Marcellus Williams, who was executed in Missouri despite the opposition of the victim’s family (who supported a life sentence) and the prosecuting attorney’s grave doubts about his guilt, and Robert Roberson, whose case in Texas remains tangled in both litigation and politics despite overwhelming evidence that his case involved no actual crime.

President Biden has shown clear moral leadership by commuting these 37 federal death sentences. Not only does this action effectively fulfill his 2020 promise to end the death penalty at the federal level, it should also serve as a model and an incentive for state leaders to follow suit..

Indeed, contrary to popular misconception, the federal death penalty has been just as arbitrary, unfair, and excessive as we see in the states. In particular, it is marred by the same stark racial disparities. Before the president’s commutations, a majority of those on federal death row were people of color. Just as in the states, federal defendants in cases with white victims have been more likely to receive death sentences.

Those whose sentences were commuted included Black men who were convicted by all-white juries. Especially in cases where the crime occurred in a city, the mere fact of federal prosecution has had a demonstrated “bleaching” effect on the jury pool, which is drawn from a majority-white federal district instead of the more diverse county where a crime took place. The president’s commutations are an important recognition of and step towards remedying this systemic racial discrimination.

In 2020 and 2021, the federal government carried out an unprecedented killing spree, executing 13 prisoners at a blistering pace over the final months of the Trump administration. Six of the 13 people executed were Black; a seventh was Native American and was executed over the Navajo Nation’s vehement opposition. One of those Black men had been sentenced to death by an all-white jury. Two were diagnosed as intellectually disabled by experts. At least two of the people executed suffered from such severe mental illness that their competence to be executed was in serious question.

Several had significant claims that their convictions or sentences were infected by prosecutorial misconduct, racial bias, the use of flawed forensic evidence or ineffective defense counsel. Many of these people never had their claims heard in court.

Lower courts entered a total of 22 stays in these 13 cases — a stunning number, based on determinations that further review was needed before executions could proceed. Every one of those stays was lifted, mostly by the Supreme Court. Many of the prisoners sought clemency from then-President Trump.

Victims’ family members, trial judges, prosecutors, jurors, faith leaders, mental health and disability advocates, correctional officers, and others urged Trump to stop these executions, but he did not grant any of the prisoners’ clemency requests.

During his time in office, Biden has taken a different approach to justice, pursuing policies that make Americans safer, not just those rooted in “tough on crime” rhetoric. His Justice Department imposed a moratorium on executions and has exercised restraint in capital prosecutions, seeking death sentences only in a small number of extreme cases. In fact, under the Justice Department's current standards, it would today seek the death penalty for almost none of the men who were on federal death row.

By now commuting nearly all federal death sentences to life in prison, these measures cannot be quickly reversed by the incoming Trump administration. Those still on federal death row are still pursuing appeals, making it virtually impossible that we would see another horrifying spate of federal executions any time soon.  

President Biden’s death row commutations will also bring important collateral benefits. The significant public funds that have been devoted to prosecuting capital cases and maintaining death row can be reallocated to evidence-based community violence prevention programs and, in particular, to the kinds of trauma-informed services that so many families find it difficult or impossible to access when they have lost loved ones to homicide.  

The president has exercised his constitutional power to make a historic and courageous decision to move this country towards justice and humanity. I commend him for doing so.

Russ Feingold served Wisconsin in the United States Senate from 1993 to 2011. He is the president of the American Constitution Society.