Biden’s clemency for death row inmates contrasts with Trump’s execution plans

With his term in office nearing its end, US President Joe Biden has commuted the sentences of 37 out of 40 federal death row inmates. This action could potentially impede President-elect Donald Trump’s stated intentions to broaden federal executions during his upcoming administration. Biden’s decision drew immediate criticism from Republicans, with some accusing the president of prioritizing criminals over law-abiding citizens. Federal executions were infrequent prior to Trump’s first presidential term, which concluded with a series of executions that broke a 130-year-old tradition of pausing capital punishment during a presidential transition. Trump has pledged to reinstate the practice upon his return to the White House in January, which could lead to legal disputes early in his administration. Here is an overview of the situation. On Monday, Biden converted the sentences of 37 of the 40 death row inmates, changing their penalty to life without parole. Only three inmates remain facing the death penalty: Dzhokhar Tsarnaev, convicted of the Boston marathon bombing; Robert Bowers, sentenced for killing 11 worshippers and injuring seven in a 2018 shooting at the Tree of Life synagogue in Pittsburgh; and Dylann Roof, sentenced in 2017 for a mass shooting in 2015 that resulted in the deaths of nine black parishioners at the Mother Emanuel AME church in Charleston, South Carolina. While human rights organizations, including Amnesty International, largely commended the move, it was swiftly condemned by some Republicans, as well as Trump’s transition team and political allies. In a statement, Trump communications director Steven Cheung asserted that “these are among the worst killers in the world and this abhorrent decision by Joe Biden is a slap in the face to the victims, their families, and their loved ones.” He further added, “President Trump stands for the rule of law, which will return when he is back in the White House.” Trump will not be able to reverse these commutations when he re-enters the White House next month. Texas Republican Chip Roy posted on X that the decision was “unconscionable” and an abuse of power “to carry out a miscarriage of justice.” Another Republican, Arkansas Senator Tom Cotton, stated that “when given the choice between law-abiding Americans or criminals, Joe Biden and the Democrats choose criminals every time.” Some family members also expressed outrage. On Facebook, Heather Turner, whose mother was killed in a 2017 bank robbery, labeled the commutations a “gross abuse of power.” She wrote, “At no point did the president consider the victims,” and “He, and his supporters, have blood on their hands.” The commutations do not extend to the approximately 2,200 death row inmates convicted by state courts, as the president holds no authority over these cases. Throughout his election campaign, Trump vowed to resume federal executions and expand the categories of individuals eligible for the death penalty. This includes those convicted of raping children or involved in drug and human-trafficking cases, as well as migrants who kill US citizens or police officers. When announcing his presidential candidacy in 2022, Trump stated, “These are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country.” He also added, “We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts.” More than 40 federal laws can, in theory, lead to the death penalty, covering offenses from murders committed during a drug-related shooting to genocide. Almost all of these, with the exceptions of espionage and treason, explicitly involve the death of a victim. Trump, however, has provided limited specifics on how he intends to implement his campaign promise. Despite this lack of clarity, Trump’s pledges to expand the federal death penalty have drawn strong warnings from human rights advocates. For instance, in an 11 December statement, the American Civil Liberties Union described Trump’s plans as “chilling” and an expansion of the “killing spree he initiated in the final six months of his first presidency.” The statement continued, “He’s already shown us that he will act on these promises.” Among the inmates executed during the final days of Trump’s initial administration were Lisa Montgomery, the first woman executed by the federal government since 1953, and Lezmond Mitchell, the only Native American on federal death row. US media outlets have reported that Trump cannot reverse Biden’s commutations. Trump’s efforts to broaden the death penalty to include crimes that do not involve murder are likely to encounter legal challenges. In 2008, the Supreme Court ruled that individuals convicted of raping children cannot be executed, and it remains uncertain whether the death penalty could be applied to crimes in which a victim is not killed. According to the National Registry of Exonerations, cases involving child victims are particularly susceptible to wrongful convictions, can be “extremely emotional,” and often pit family members against one another. Any further expansion of crimes eligible for the federal death penalty would require Congress to act and change the law. In 2024, two bills, both sponsored by Florida Republican and Trump ally Anna Paulina Luna, sought to expand the use of capital offenses to include possession of child pornography, as well as the trafficking, exploitation, and abuse of children. Both bills failed to pass in the House of Representatives. Trump is also unlikely to be able to quickly replenish the pool of federal death row inmates, as most death penalty cases take years and are subject to lengthy appeals processes. While he lacks direct authority over state executions, some experts have cautioned that Trump’s pro-death penalty stance may encourage more executions at the state level. Yasmin Cader, a deputy legal director at the American Civil Liberties Union and director of the Trone Center for Justice and Equality, told CNN that “His rhetoric can and has spurred draconian measures and attitudes by leaders in states on several issues, including in the context of the criminal legal system.” In addition to the federal government and the US military, 27 US states currently retain the death penalty. A Gallup poll conducted in October indicated that a narrow majority of Americans, 53%, support the death penalty for convicted murderers, an increase from 50% a year prior.