When the Trump administration in 2019 began executing death row inmates for the first time in more than a decade, Joe Biden became outspoken against the practice.
Previously a strong supporter of capital punishment, the president-elect helped make dozens of crimes punishable by death when he pushed through his now-infamous 1994 Violent Crime Control and Law Enforcement Act. Throughout his time in the Senate, he consistently reaffirmed his position: Biden even said there were no “moral grounds” on which he opposed capital punishment during a 2000 Senate Judiciary Committee hearing.
But in the past year, as President Trump’s Justice Department stoked anti-capital punishment sentiment among many Democrats by executing 13 people, Biden has swung to the opposite position, promising to end the death penalty while in office. Biden began evolving his opinions toward calls for abolition after many of opponents in the 2019 Democratic primary races voiced their opposition — and as the Trump administration faced increased scrutiny for its support.
Biden’s strong opposition should come as no surprise, given the tendencies among Democrats to reject everything Trump embraced during his turbulent term, said Robert Blecker, an emeritus professor of criminal law at New York Law School.
“If you’re looking to make a statement about changing practices from the Trump administration, this is an easy way to do it,” Blecker said of Biden’s promise not to pursue federal executions during his tenure.
"I would assume that, for the next four years, you’re not going to see a federal execution," Blecker said.
The Trump administration, in its final days, has drawn outrage from many opponents of the death penalty by successfully appealing for the overturn of a series of stays granted to three death row inmates. In all cases, the Justice Department asked the Supreme Court to clear the path for the executions, which the high court did, vacating the stays each time in a 6-3 vote.
After the court cleared the final execution late Friday night, Justice Sonia Sotomayor delivered a blistering rebuke of the decisions, upbraiding the court for not slowing the Justice Department’s eagerness to secure executions.
“This is not justice,” Sotomayor wrote in her dissent. “After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not.”
Sotomayor named the 13 people executed by the Trump administration, drawing much praise from anti-death penalty advocates, as well as members of Congress opposed to capital punishment.
“Say their names,” tweeted first-term Missouri Rep. Cori Bush, repurposing a popular slogan used by racial justice advocates. A group of Democrats in both the House and Senate introduced a bill last week to end the death penalty.
Similar to Sotomayor, the Biden team in its policy proposals regarding the death penalty cites a desire for restraint, writing that the fact that “we cannot ensure we get death penalty cases right every time” drove Biden to advocate for an end to the federal death penalty and push for states to do the same.
Within Biden’s first week in office, he’ll likely face his first test on the death penalty. The Supreme Court on Friday considered an appeal from Trump’s Justice Department asking to reinstate a death sentence for Dzhokhar Tsarnaev, the Boston Marathon bomber. The court is likely to make a decision this week.
No matter what it decides, it will be up to the Biden Justice Department to keep pursuing the execution. Biden’s presumptive Attorney General Merrick Garland famously prosecuted Timothy McVeigh, the Oklahoma City bomber, a case that ended with a death sentence. And Garland, who has been praised by both Republicans and Democrats for his moderation, has not in the past displayed a total opposition to the death penalty, said Michael Meltsner, a professor at the Northeastern University School of Law.
Meltsner said there’s a strong possibility that Biden, even with his opposition to capital punishment, will allow Garland and whomever Biden chooses as solicitor general to act independently in the Tsarnaev case, as well as other cases in which the death penalty is sought.
“Biden may leave decisions in individual cases up to the Justice Department committee that decides if capital punishment is appropriate,” Meltsner said.
