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The mystery of Joe Biden’s views about capital punishment has finally been solved. His decision to grant clemency to 37 of the 40 people on federal death row shows the depth of his opposition to the death penalty. And his decision to leave three of America’s most notorious killers to be executed by a future administration shows the limits of his abolitionist commitment.
The three men excluded from Biden’s mass clemency—Dylann Roof, Dzhokhar Tsarnaev, and Robert Bowers—would no doubt pose a severe test of anyone’s resolve to end the death penalty. Biden failed that test.
In a statement announcing his clemency decision, the president said, “I am more convinced than ever that we must stop the use of the death penalty at the federal level. In good conscience, I cannot stand back and let a new administration resume executions that I halted.”
But Biden cannot stop the use of the federal death penalty by leaving Roof, Tsarnaev, and Bowers behind. He can’t prevent the Trump administration or its successors from resuming executions by refusing to commute their sentences.
Still, we should recognize that it is never easy for a political leader to spare the life of someone who has murdered an innocent victim. That is why presidents do it so rarely. Over the past 25 years, only three other federal death row inmates have been granted clemency.
On Jan. 20, 2001, his last day in office, President Bill Clinton commuted the death sentence of David Chandler. He did so after the key witness against him “recanted his testimony and acknowledged committing the murder himself.”
In 2017, Barack Obama granted clemency to Abelardo Arboleda Ortiz and Dwight Loving. In the Ortiz case, Obama granted clemency “on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated … and he had been denied effective assistance of counsel at trial.” Like Ortiz, Loving received clemency because he also had received ineffective assistance from his trial lawyer. But also because of “racial and gender bias in the selection of members of his court-martial.”
What Biden did for 37 people on federal death row is in itself momentous. And, as the Washington Post observes, “Biden’s decision to intervene in even one death penalty case caps a remarkable turnaround for him on this issue.”
Leading opponents of the death penalty quickly and lavishly praised the president for this turnaround. For example, Anthony Romero, executive director of the American Civil Liberties Union, said, “President Biden took a historic and courageous step in addressing the failed death penalty in the United States—bringing us much closer to outlawing the barbaric practice once again. By commuting the sentences of 37 individuals on death row, President Biden has taken the most consequential step of any president in our history to address the immoral and unconstitutional harms of capital punishment.”
But Romero said nothing about Roof, Tsarnaev, and Bowers.
Neither did Bryan Stevenson, founder of the Equal Justice Initiative and one of America’s leading abolitionists. Stevenson commended Biden “for recognizing that we don’t have to kill people to show that killing is wrong, that we can and should reduce violence in our communities by refusing to sanction more violence and killing in our courts and prisons.”
Martin Luther King III also lauded Biden for taking “meaningful and lasting action not just to acknowledge the death penalty’s racist roots but also to remedy its persistent unfairness.” He, too, was silent about the fate of the three people who were left out of Biden’s clemency.
As a matter of tactics, such silence is not surprising. Commuting the death sentences of Roof, Tsarnaev, and Bowers would have unleashed a firestorm of protest.
And in the long run, it might have done damage to the campaign against the death penalty by associating it with three of America’s most heinous killers. Taking on those kinds of cases might, as I have previously warned, also have diverted attention from the damage capital punishment does to our democracy and our culture.
Still, can one really be against state killing and not oppose the execution of people whom law professor Robert Blecker calls “the worst of the worst“? Apparently, Biden thinks so.
Since Biden became president, many have tried to discern his real views and the meaning of his administration’s actions in capital cases. As a candidate in 2020, Biden promised to “work to pass legislation to eliminate the death penalty at the federal level and incentivize states to follow the federal government’s example.”
Today, he did more. But in my view, not enough
The White House made clear that Biden “believes that America must stop the use of the death penalty at the federal level, except in cases of terrorism and hate-motivated mass murder.”
“Except.” We should have known that there was an “except” in Biden’s opposition to the death penalty from actions the Justice Department has taken to defend the convictions and sentences of Roof and Tsarnaev and to proceed with the prosecution of Bowers.
Abolitionists have made great strides in changing the situation of capital punishment in this country by focusing on problems like false convictions, racial disparities in death sentences, and botched executions. But they will never get this country to rid itself of the death penalty if they join Biden in making exceptions, especially for those whom others would see as most deserving of death.
The president of all people should understand this. His Catholic faith should have instructed him.
Last week, Biden spoke to Pope Francis about many things, including the decision he faced about whether to commute the sentences of the people on federal death row.
While we cannot know exactly what the two leaders said, the Vatican News was perfectly clear about the Pope’s position. The Pope, it said, “has described the death penalty as an act ‘at odds with Christian faith’ and one that ‘eliminates all hope for forgiveness and rehabilitation.’ ”
On Dec. 8, one day before he talked to Biden, “the Holy Father called on the faithful to ‘pray for the prisoners who are on death row in the United States.’ … ‘Let us pray,’ he said, ‘that their sentence be commuted, changed. Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death.’ ”
The Pope recognized no exceptions. And neither should have Biden.
Sooner or later, opponents of the death penalty will have to take on the task of persuading the American people that incomplete abolition is no abolition at all—and that even perpetrators of the most horrible crimes, like Roof, Tsarnaev, and Bowers, should not be put to death.
Biden had the chance to take a significant step in that direction. It is too bad that he wasted it.
