WASHINGTON – As he prepared to take office three years ago, Joe Biden's incoming administration considered a host of possible options to fulfill a campaign pledge to end the federal death penalty.
One idea was an executive order, according to people familiar with the matter. But the White House did not issue one or push for legislation in Congress. Six months later, Attorney General Merrick Garland announced a moratorium on federal capital punishment to study the protocols used to execute people, a narrower action that has meant no executions under Biden. The Justice Department has since pushed for the death penalty against the suspects charged with mass shootings in Pittsburgh and Buffalo.
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Biden doesn't discuss the death penalty much today. Former President Donald Trump, meanwhile, consistently vows in campaign speeches to seek execution for drug dealers as part of a national crackdown on crime.
Capital punishment hasn’t shaped a U.S. presidential race since 1988 when Democratic Massachusetts Gov. Michael Dukakis was criticized for offering little emotion when asked during a debate if he'd favor the death penalty for the perpetrators if his wife were raped and murdered.
But the issue could quickly return to the national spotlight if Trump retakes the White House and hustles to resume federal executions as he has repeatedly promised. That's left some Biden supporters frustrated he hasn't done more to prevent a future president from resuming executions, especially considering Trump pushed through 13 in his final six months in office.
“It’s always been used as a political talking point. It has for centuries and it probably always will be,” said Robin Maher, executive director of the nonprofit Death Penalty Information Center, which takes no official position on capital punishment but criticizes problems in its application. “But I think the American public is seeing through that now and is really looking for more serious answers to these very serious problems in our communities.”
The incoming Biden administration’s deliberations were disclosed by former officials who spoke on condition of anonymity to discuss internal conversations.
According to Gallup, support for the death penalty against convicted murderers has fallen from 80% in 1994 to 53% last year. And, in November, Gallup found in a separate poll that, for the first time, more Americans believe the death penalty is applied unfairly, 50% to 47%.
The vast majority of condemned inmates are sentenced at a state level. Just 44 of the 2,331 people facing death sentences were held in federal prison at the start of this year, according to the Death Penalty Information Center. In addition to the federal government, 21 states allow the death penalty, and it remains legal in six more that have presently declared moratoriums or otherwise paused executions.
Alabama drew international attention for its use of nitrogen gas to execute Kenneth Eugene Smith, a convicted murderer, last month. Smith appeared to remain conscious for several minutes. For at least two minutes, he shook and writhed on the gurney, sometimes pulling against the restraints.
Biden is the first president to openly oppose capital punishment. His 2020 campaign website declared that he’d “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example."
Similar language doesn’t appear on his website this year. His campaign declined requests to comment.
Following Garland’s moratorium, the Department of Justice reversed more than 30 decisions to seek the death penalty. But federal prosecutors announced in January that they are seeking a death sentence for Payton Gendron, who killed 10 Black people at a Tops supermarket in Buffalo, New York two years ago. Prosecutors successfully argued for use of the death penalty against Robert Bowers, who killed 11 congregants at Pittsburgh's Tree of Life synagogue in 2018.
Biden's 2020 position was a change of heart from when he sponsored a landmark 1994 crime bill that expanded federal capital punishment for around 60 offenses — including terrorism, murder of law enforcement officers, large-scale drug trafficking and drive-by shootings. It also once prompted Biden to boast that it might “do everything but hang people for jaywalking.”
Abraham Bonowitz, director of Death Penalty Action, which advocates for abolishing capital punishment, said Biden has “not done or said anything” to make good on his 2020 pledge but acknowledged that the president’s attempting to do so now “doesn’t help him” politically.
“When Joe Biden becomes lame duck, whether it’s at the end of this term, or he gets another term, at the end of that term, I think that’s when we’ll see him act in whatever way he has the capacity to do,” Bonowitz said.
Today, Trump's the one talking glowingly about capital punishment.
It's an issue that touches two cornerstones of Trump's politics since his first run for president: playing on anti-immigrant sentiments about the U.S.-Mexico border and trumpeting a common Republican law and order refrain that has resonated with voters worried about crime and the smuggling of fentanyl across the border.
In a speech announcing his 2024 campaign, Trump called for those “caught selling drugs to receive the death penalty for their heinous acts.” More recently, he’s promised to execute drug and human smugglers and even praised Chinese President Xi Jinping's treatment of drug peddlers.
“President Xi in China controls 1.4 billion people, with an iron hand, no drug problems. You know why?” Trump told a recent New Hampshire campaign rally. “Death penalty for the drug dealers.”
China does have problems with opioid abuse, but official statistics omit most cases and addicts are often denied treatment options.
The 13 federal executions Trump's administration carried out happened fast enough that they may have contributed to the spread of the coronavirus at the federal death row facility in Indiana.
Those were also the first federal executions since 2003, and the final three occurred after Election Day but before Trump left office — the first time federal prisoners were put to death by a lame duck president since Grover Cleveland in 1889.
Evoking the death penalty draws strong cheers among Trump audiences, but the issue doesn't enjoy universal support among his conservative base, especially among some religious leaders and ardent abortion opponents.
“It’s going to be a struggle for some in the community,” said Troy Miller, president and CEO of the National Religious Broadcasters. “But I also think there’s a lot of strong support in the community for tough punishments and consequences.”
Ann E. Gillies, a trauma specialist, pastor and author who saw Trump address the National Religious Broadcasters convention, hails from Canada, where the death penalty was abolished in 1976. But she said the U.S. applying it serves as a deterrent.
“I always think, ‘Is there room for redemption?’ That’s my perspective," she said. “But, even with that, if you’ve done the crime you need to do the time, do the punishment.”