Add this to the long list of life-and-death concerns that will be inherited by President-elect Joe Biden: Capital punishment.
The issue has been amplified by President Donald Trump, whose administration authorized the executions of 13 prisoners—all since July. In a span of seven months, the Trump administration has presided over the largest number of federal executions in one year since 1896, when 16 inmates were executed under President Grover Cleveland.
“They’ve been working extra hard and fast to carry out executions,” said Dan Urman, a Northeastern professor who teaches human rights, criminal justice, and the American legal system and the U.S. Supreme Court. “It’s a dark, bizarro version of ‘use it or lose it.’ They know the next administration is about to take over.”
Now, Biden’s inauguration will likely bring a different approach to an incendiary political issue. In polls, a majority of Republicans favor the death penalty, while a majority of Democrats oppose it. Support overall for capital punishment in the U.S. has been waning since 1994, when 80 percent of Americans favored it. A recent Gallup poll showed 55 percent support for the policy, amounting to a 42-year low.
Trump is the first president in 130 years to authorize an execution during the lame-duck period following the election of a successor: Six inmates have been executed since November, five of them Black men.
Proponents of the death penalty say it is morally justified in some extreme cases of murder. “We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system,” said Attorney General William Barr while announcing the resumption of federal executions in June.
But opponents say the death penalty doesn’t align with American values. Daniel Medwed, university distinguished professor of law and criminal justice at Northeastern, said he opposes capital punishment based on many factors, including his personal belief that jurors should not face an “unfair burden” of sentencing a defendant to death. “It’s been a race against the clock to basically kill people,” Medwed said of the Trump administration’s death penalty strategy.
Biden has said he wants to pass laws that would terminate the federal death penalty while incentivizing states to end the practice as well. Two Democratic leaders—Senator Dick Durbin of Illinois and Representative Ayanna Pressley of Massachusetts—plan to introduce legislation that would abolish the federal death penalty, now that their party controls both houses.
Biden’s nominee for attorney general is Merrick Garland, who as a U.S. deputy attorney general prosecuted the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City that killed 168 people—and resulted in the 2001 federal execution of Timothy McVeigh.
Garland will be expected to respond to the case of Dzhokhar Tsarnaev, whose death sentence for the 2013 bombing of the Boston Marathon was overturned in July by a three-judge panel of the 1st U.S. Circuit Court of Appeals. The court ordered a new penalty-phase trial for Tsarnaev, 27, who killed three people and wounded more than 260 in the attack.
“The Trump administration has gone to the Supreme Court to try and get the death penalty reinstated,” said Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished Professor of Law at Northeastern, who was part of a group that filed a friend of the court brief in the court of appeals arguing that Tsarnaev’s death sentence be set aside. “The Biden Justice Department will have an opportunity to weigh in and take a position.”
At the federal level, there had been no executions for 17 years before Trump changed course. In 2020, his administration carried out executions of 10 prisoners—three more than were executed across the 50 states that year. Thirty-four states have either abolished capital punishment or not executed a prisoner in 10 or more years.
Since 1973, more than 170 people who have been sentenced to death have later been exonerated. Support for capital punishment has been waning because of public understanding that the criminal justice system is vulnerable to mistaken or fabricated testimony, incompetent defense lawyers, police or prosecutorial misconduct, and racial bias, said Meltsner.
“The death penalty in the United States has always been historically affected by race,” said Meltsner, who helped launch the anti-capital-punishment movement in the 1960s when he was first assistant counsel of the NAACP Legal Defense Fund.
Black people make up 13 percent of the U.S. population, but they represent more than 40 percent of the inmates currently on federal death row. The race of the victim can be as significant as that of the accused: A groundbreaking study by David C. Baldus found that cases involving the murder of white people were four times more likely to result in death sentences than when the victims were Black.
Overall, three-fourths of U.S. executions involve white victims—even though white people are murdered as often as Black people, according to a study by the Death Penalty Information Center.
In Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment, an article that Medwed plans to publish later this year, he expresses hope that the Black Lives Matter movement may lead to constructive changes in capital punishment laws.
The death penalty has been shown to not be a deterrent to murder, Meltsner and Medwed said.
“The vast majority of murderers are not acting rationally,” Meltsner said. “And even if you were, you would still not be deterred, because the number of persons executed has always been trivial compared to the number of eligible homicides.”