During his final six months as president, Donald Trump’s administration carried out an unprecedented execution spree, killing 13 people. When President Joe Biden replaced Trump in 2021, he became the first U.S. president to publicly oppose the death penalty. He pledged to work with Congress to abolish the federal death penalty and called for those on death row to instead serve sentences of life in prison without the possibility of parole.
But over the past four years, Biden has made no apparent effort to whip up support for legislation to abolish the death penalty that has languished in Congress. Meanwhile, the Department of Justice has pursued new death verdicts and aggressively defended existing death sentences — including cases riddled with the same issues the Biden administration has cited as reasons to end the practice. As it stands, there are 40 people on federal death row,many of whom have exhausted their appeals and face possible execution by the incoming Trump administration, which, according to the right-wing Project 2025 policy document, plans to execute every death row prisoner.
With the stroke of a pen, Biden could commute every federal death sentence to life in prison and block the incoming Trump administration from carrying out its stated mass killing agenda. Now in his final weeks in office, Biden faces mounting calls from lawmakers, activists, faith leaders and those condemned to die to take action before it’s too late. Even some victims’ family members, former corrections officials, prosecutors and retired judges have urged the president to empty the federal death row.
“If I was lucky enough to be able to advise [Biden], I would tell him that it is completely consistent with respect for the Department [of Justice] for him to take a second look at those decisions and to make a statement about what it means to have the state kill people,” Rachel Barkow, a professor at New York University School of Law and a former member of the U.S. Sentencing Commission, said in an interview.
“I have no doubt in my mind how history will judge the death penalty,” Barkow said.
Although Biden recently made the politically fraught decision to pardon his son Hunter Biden — who faced potential prison time for federal felony gun and tax convictions — he has given no indication of his willingness to extend mercy to those facing potential execution. The White House cited the incoming Trump administration’s desire for “retribution” as justification for Biden’s decision to intervene in Hunter Biden’s case. Aside from his son, the president’s end-of-office clemency acts have so far been limited to nearly 1,500 people who had already been released into home confinement during the COVID-19 pandemic, and 39 people convicted of nonviolent crimes.
When Biden first entered office, death penalty abolitionists called on the president to quickly use his clemency power to empty death row as a fail-safe for congressional inaction. “If you don’t commute the whole row, this can happen again,” former public defender and Wren Collective founder Jessica Brand told HuffPost in January 2021, referring to the then-recent execution spree under Trump. “Someone who was at all outraged by how horrific and barbaric this has been should just commute the row.”
Instead, the Biden administration took a cautious, incremental approach. The Department of Justice reinstated a moratorium on federal executions — a return to the status quo before Trump’s first presidency — and launched a review into the government’s execution protocol and regulations. The results of those reviews have not been released, and the DOJ declined to comment on whether they would be finished before Biden leaves office on Jan. 20.
At the same time, Justice Department lawyers continued to fight to uphold existing death sentences, a seemingly contradictory effort to Biden’s stated goal of ending the federal death penalty. When defense lawyers have tried to introduce evidence that their client has an intellectual disability, which would make them ineligible for a death sentence, DOJ lawyers have cited procedural issues to block them from raising that evidence in court, Ruth Friedman, the director of the Federal Capital Habeas Project, said in an interview. They have also worked to block individuals on death row from presenting evidence that they had ineffective trial lawyers or that their trials were tainted by racist practices.
“There’s a point at which, what does it mean to say you care about these things, that you really are concerned with the way federal death row is implemented and leave people to be executed nevertheless,” Friedman said.
Last year, the Justice Department updated its Justice Manual with specifications on when to seek the death penalty. The changes articulated a high bar for seeking death and directed the government to consider the strength of the evidence, whether the defendant was already serving a long sentence and the federal government’s interest in the case. “In evaluating whether capital punishment should be pursued, particular consideration should be given to cases involving the most harm to the nation, including through widespread impact to the community,” the revised manual states.
The updated guidelines would have excluded most of the people currently on federal death row from being prosecuted as death penalty cases had the guidelines been in place at the time of their trial, multiple defense lawyers noted in interviews.
“The Biden administration is saying, ‘We recognize that we don’t meet the standards that we think are narrow enough to apply the ultimate sanction — but we’re going to allow them to be executed anyways,’” Friedman said. “That makes no sense. This is yet another reason why clemency is warranted.”
When Biden entered office in 2021, Senate Judiciary Chairman Dick Durbin (D-Ill.) and Rep. Ayanna Pressley (D-Mass.) had already reintroduced legislation to abolish the federal death penalty that had stalled in the previous Congress. But even with Democrats narrowly controlling both the House and Senate, the bill failed to gain traction. Less than half of the Democrats in each chamber signed on as co-sponsors to versions of death penalty abolition legislation introducedin2021 and againin2023.
“I wouldn’t say that the White House has been actively engaging people to support the bill,” Rep. Adriano Espaillat (D-N.Y.), the sponsor of one of the death penalty bills in the House, told HuffPost earlier this year. “I think their response to the death penalty issue was to implement this moratorium.”
The White House did not respond to a request for comment.
As Trump’s second term approaches, Democrats have been increasingly outspoken in calling on Biden to commute the sentences of those on federal death row.
“The Biden Administration paused federal executions because they don’t lead to safer communities and it’s impossible to ignore the number of people exonerated from death row due to racial bias, mental illness, or inadequate defense counsel,” Sen. Peter Welch (D-Vt.), a former public defender, told HuffPost in a statement.
“The president has the singular power to commute federal death sentences to life in prison, and he can do it before January 20. President Biden should act quickly,” Welch said.
On Tuesday, Pressley, Rep. Cori Bush (D-Mo.) and death penalty abolitionists held a news conference on Capitol Hill, calling on Biden to commute the sentences on death row. “State-sanctioned murder is not justice, and the death penalty is a cruel, racist and fundamentally flawed punishment that has no place in our society,” Pressley said.
The lawmakers were joined by Rev. Sharon Risher, whose mother and two cousins were killed in the 2015 mass shooting at Mother Emanuel AME Church in Charleston, South Carolina. In an interview, Risher acknowledged her own complex emotions around the effort to save the life of the person who killed her loved ones.
“I don’t believe in the death penalty on a religious philosophical understanding. But as my mother’s child, if there was a way for him to get from this earth without being killed by the state, I would be first in line. But that’s not reality,” Risher told HuffPost. “I can’t pick and choose who to forgive. That’s not my job. My job is to make sure everybody gets a fair shake. That’s why with Dylann Roof — even for him, even for him — I would not want the federal government to kill him.”
