What Happens to the Federal Death Penalty in a Biden Administration?

7 minute read

Joe Biden is the first president in U.S. history to openly campaign on abolishing the death penalty and win. Now that he’s in the White House, pressure is already mounting from activists and lawmakers for him to fulfill that promise.

Pointing to the more than 160 Americans who’ve been exonerated from death sentences since 1973, Biden pledged on the campaign trail to work to pass legislation eliminating the federal death penalty and “incentivize states to follow.” Former President Trump’s Department of Justice had been run with a polar opposite view: In the last seven months of his presidency, the Trump administration oversaw the most federal civilian executions since 1896, putting to death 13 death row prisoners amid a raging pandemic and despite a litany of legal challenges. Six of the deaths came after Biden’s win in the 2020 election, the most executions during a presidential transition period in U.S. history. The last three—those of Lisa Montgomery, Corey Johnson and Dustin Higgs—took place mere days before Biden took his oath of office.

The unprecedented spree of executions brought increased focus to the issue right as Biden assumed the presidency. On Jan. 22, U.S. Representatives Cori Bush and Ayanna Pressley, along with 35 other Democratic House members, sent a letter to Biden urging him to commute the death sentences of all 49 people remaining on federal death row.

“We appreciate your vocal opposition to the death penalty and urge you to take swift, decisive action,” the letter reads, arguing that while President Obama suspended federal executions and commuted the sentences of two federal death row prisons while in office, his administration’s “reticence to commute more death sentences has allowed the Trump administration to reverse course and pursue a horrifying killing spree.”

Read more: The Death of the Death Penalty

“Commuting the death sentences of those on death row and ensuring that each person is provided with an adequate and unique re-sentencing process is a crucial first step in remedying this grave injustice,” the letter goes on.

Biden did not address the issue during his very first days in office, but a Jan. 19 memo from then-incoming White House Chief of Staff Ron Klain said that, between Jan. 25 and Feb. 1, the President would sign several executive orders including “action to begin fulfilling campaign promises related to reforming our criminal justice system.”

It’s unclear what exact orders Biden might issue; asked by TIME for more details, the Biden administration declined to comment. But Robert Dunham, the executive director of the nonprofit Death Penalty Information Center, says “there are a range of things that [Biden] can do that would have the effect of clearing death row and stopping federal prosecutions.”

Here’s what to know about what could happen to the federal death penalty in a Biden administration.

What can Biden do?

“My working assumption is that the Biden White House and the judiciary committees will want to incorporate the elimination of the death penalty in a larger criminal justice and sentencing reform measure,” writes Steven S. Smith, a professor of political science at Washington University in St. Louis, in an email to TIME. “That bill will take time to construct, although the Biden campaign had [a] long itemized list that can serve as the framework.”

At any time during his presidency, Biden has the power to issue a blanket executive order commuting the sentences of all 49 people on federal death row to life without parole. He could also declare a moratorium on all federal executions via an executive order, similar to the one issued by California Gov. Gavin Newsom in 2019 that halted executions in his state. The move would mostly be symbolic—as it wouldn’t extend past Biden’s term—but like California’s moratorium, the order could serve as “an admission about how broken the system” is, says Dunham. Like Newsom, Biden could also withdraw the government’s execution protocol and dismantle the execution chamber where prisoners are killed.

In a Dec. 15 letter, Pressley and 44 other lawmakers had urged Biden to issue such a moratorium his first day in office, as well as to direct the Department of Justice (DOJ) to stop seeking the death penalty. (There have been several periods in history where the U.S. government hasn’t sought capital punishment in sentencing, but never due to an executive order from the president.) Biden could also withdraw any notices of intent to seek the death penalty that the Trump administration had already filed in ongoing cases, effectively “de-capitalizing” them, says Dunham.

What can Congress do?

Only Congress can officially end the federal death penalty with an act of legislation. Several prominent Democrats have already introduced bills to do just that: in early January, Rep. Pressley and Rep. Adriano Espaillat each introduced their own bill into the House of Representatives to eliminate the federal death penalty; Illinois Sen. Dick Durbin, the incoming Senate Judiciary Chair, has announced plans to introduce a companion bill to Pressley’s into the Senate. The legislation would end the death sentence at the federal level and require the re-sentencing of federal prisoners currently on death row.

A June 2020 Gallup poll found that 54% of Americans believe the death penalty is morally acceptable, a record low since Gallup began polling on the issue in 2001. And while opposition to the death penalty has become more bipartisan at the state level, it still tends to fall along party lines in national politics.

With Democrats now also in control of the U.S. Senate—due to a 50-50 split and Vice President Kamala Harris’ tie-breaking vote—the legislation’s chances of becoming law have risen, but still remain in flux.

“I don’t think a federal definitely abolition bill is going to get through the Senate of the United States,” says Austin Sarat, a professor of law and politics at Amherst College. It seems unlikely, he explains, that the current makeup of Congress will provide the 60 votes needed to override the Senate filibuster and get the bill onto Biden’s desk. But these bills are still important, he continues, because they “further signify… increasing doubts about the death penalty in the United States.”

Lawmakers could separately amend the federal death penalty statue to eliminate several of the federal crimes currently punishable by death. They could also change the appellate process for federal capital cases, which has fewer constitutional protections than those appealed at the state level, argues Dunham. And along similar lines, Congress could also past legislation requiring stays of executions be granted if there are issues of disputed law or fact in the case, “so that the United States Supreme Court cannot allow an execution to go forward when there are doubts about its legality.”

During the 13 federal executions in the last months of the Trump administration, several high profile cases—including those of Lisa Montgomery and Brandon Bernard—were granted stays by lower courts to allow time for legal hearings, only for those stays to be overruled by the Supreme Court.

“There’s a sense [that] the current U.S. Supreme Court… pretty much acted as a rubber stamp,” Dunham adds. “It didn’t matter what the legal issues were, they were always decided in favor of executing prisoners.”

Abraham Bonowitz, executive director of the anti-death penalty advocacy group Death Penalty Action, says his organization wants to see movement to abolish federal capital punishment within the first 100 days of the Biden administration. And while issuing an executive order would be an important step, it wouldn’t be enough, Bonowitz says.

Abolition “fits squarely into the racial reckoning that has to happen, and just basic recognition of the unfairness of the system,” he continues. The Biden administration “should do what they said they’re going to do.”

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Write to Madeleine Carlisle at madeleine.carlisle@time.com