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Upon His Inauguration, Biden Should Commute All Federal Death Sentences

In the immediate term, Biden can place a moratorium on federal executions for at least the next decade.

Demonstrators protest federal executions of death row prisoners in front of the U.S. Justice Department in Washington, D.C., on December 10, 2020.

On Wednesday, January 20, Joe Biden will be inaugurated as president of the U.S. There will likely be multiple items on the immediate agenda, especially addressing the COVID-19 pandemic. However, the last few months have illustrated the immediate need to commute all federal death row sentences. One of President Obama’s many mishaps was not doing this in 2017, right before he left office, and the Trump administration took advantage.

Prior to 2020, the federal government had not executed anyone since 2003, and only executed three people total since 1988 when the federal death penalty was reinstated under the Anti-Drug Abuse Act. In 2020 however, the federal government was responsible for the majority of all people killed via the death penalty in the U.S., all of which have occurred since July. This is the most people executed by the federal government since 1896. If they get their wish to execute three more people by inauguration day, the administration will have executed a total of 13 people since July. It will also be the most “executions to occur in a presidential transition period in U.S. history.” People already killed include Wesley Purkey and 40-year-old Brandon Bernard. Purkey suffered from Alzheimer’s before his execution. Bernard received the death penalty for a crime he committed as a teenager, and even the majority of the jury and prosecutor requested that his sentence be commuted.

Lisa Montgomery was slated to be killed today. However, at the 11th hour, as NBC News reports, “a federal judge late Monday put a temporary stop to it pending a mental competency review.” This means she may not be executed before Trump leaves office. However, Montgomery is not out of the woods just yet. As reporter Melissa Jeltsen tweeted, “Lisa Montgomery has been granted a temporary stay of execution but she is not safe yet. The government is appealing. Right now, she is at Terre Haute and the prison is in execution day protocol mode, her lawyer told me.” FCC Terre Haute is still in execution protocol, meaning the Federal Bureau of Prisons is proceeding on the assumption that the execution will happen today.

Montgomery was expected to be the first woman executed under the federal death penalty since 1953. She was raped, beaten and sex trafficked by her parents. The abuse was the likely cause of the “structural and functional brain abnormalities” according to psychologist Ruben Gur who believes that such damage “is in areas that are needed for integrated behavior under full conscious control.”

Carrying out these executions in the middle of the COVID-19 pandemic has also had specific ramifications. At FCC Terre Haute, the location of these executions, 14 people on death row have contracted COVID-19. According to the Federal Bureau of Prisons, FCC Terre Haute currently has 108 incarcerated people and 24 staff with active cases of COVID-19, numbers which are likely an undercount as a recent lawsuit notes. Prisons were already superspreaders, and carrying out these death sentences has only exacerbated COVID-19, as those slated to be executed are flown from other prison facilities around the country.

Historically, there are also structural reasons for why Biden should act immediately to commute all death penalty sentences once inaugurated. The death penalty’s legacy is tied to the history of racial terror lynchings in the South, with a decline in lynching being accompanied by an increase in death penalty sentences in court. The death penalty process is further biased, as support for the death penalty is required to serve on a jury for a death penalty case, and white people are statistically the predominant supporters. Since 1976, Black, Indigenous and People of Color (BIPOC) make up 43 percent of all executions nationwide and account for 55 percent on death row today. According to the ACLU, 86 percent of all people on death row in the U.S. military and 77 percent of all people on death row at the federal level are BIPOC.

Moreover, the stated purpose of the death penalty is deterrence, meaning that if the government puts people to death it will deter others from committing murder. Research shows that the more punitive a country is toward crime, the higher rate of violence it has. This applies to the death penalty as well, as evidence shows that the death penalty actually increases total murders.

Finally, and most importantly, the lack of humanity should be enough of a reason for the incoming Biden administration to immediately commute the remaining 52 death sentences. These are horrific executions, as reporter George Hale describes in this interview. Some are botched, causing even greater pain and agony in death. Reports also suggest that about 4 percent of people on death row are actually innocent, which is an obviously traumatic experience for those wrongly convicted and exonerated.

To be clear, this is not to say that “deaths by incarceration” (a.k.a. life without parole sentences) are any more humane. This practice must be ended as well, as these are disproportionately BIPOC who are sentenced to death by incarceration. In the immediate term, the Biden administration can take a very small step to ensure that an actual decades-long death penalty moratorium happens. By commuting these sentences and instructing his Department of Justice to stop pursuing the death penalty, President-elect Biden will ensure that no death sentences are carried out on the federal level for at least a decade, likely more, as it will prevent a potential 2024 Republican administration from doing what the Trump administration has done in these recent months.

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