Biden Faces Last-Minute Push to Clear Death Row Before Trump Restarts Executions

Five days before Joe Biden was sworn in as President and effectively stopped federal executions, the Trump Administration executed its 13th federal inmate, Dustin Higgs. Higgs was sentenced to die by lethal injection for kidnapping and ordering the killings of three women in Maryland in 1996. Before Donald Trump’s first term, there hadn’t been a federal execution in the U.S. in 17 years, and Higgs’ death marked a grisly record for Trump: no President in more than a century had put as many people to death. 

Since Biden took office, no federal inmate has been executed. Trump has promised to start up federal executions again and said he wants to expand their use.

That is why Biden is facing growing pressure to commute the death sentences for all 40 inmates on federal death row as one of his final acts in office. Article Two of the Constitution gives a President unchecked power to pardon a federal crime or commute a federal sentence, including a death sentence.

The growing calls for Biden to act are coming from a wide range of death penalty opponnents—including Pope Francis and the country’s Catholic bishops, racial justice groups, prosecutors, and civil rights lawyers. Earlier this month, Biden pardoned his son Hunter for gun and tax convictions, and on Thursday, he issued clemency for 1,499 Americans who had been released from prison and placed in home confinement during the coronavirus pandemic, the largest such act by an American President in a single day. In his statement announcing the sweeping act of clemency on Thursday, Biden said he would “take more steps in the weeks ahead.”

But commuting the sentences of every one facing federal execution—40 men in total, according to the Death Penalty Information Center—would be a particularly dramatic move. Biden would be reducing the punishment of a group that included those convicted of mass killings that horrified the nation, including Dylann Roof, the white supremacist who killed nine Black churchgoers in Charleston, S.C. in 2015; Robert Bowers, who killed 11 congregants at the Tree of Life synagogue in Pittsburgh in 2018; and Dzhokhar Tsarnaev, one of the people behind the 2013 Boston Marathon bombing which killed three people and injured hundreds of others.

Biden supported the death penalty during his three decades in the Senate, a stance that for a long time put him at odds with the doctrine of his Catholic faith. That changed during his run for President in 2020. Biden’s campaign website promised he would push Congress to abolish the federal death penalty. He never got that law passed, but his Attorney General, Merrick Garland, stalled the practice when he issued a moratorium to study the way people are put to death. 

Now Biden has the power to make one final action on the issue before his term ends. “What the President can do is fulfill his promise and secure his legacy by commuting all federal death sentences before he leaves office,” says Yasmin Cader, a deputy legal director at the American Civil Liberties Union and the director of the Trone Center for Justice and Equality.

With just weeks to go to convince the President to act, advocates are not wasting time being subtle. When Pope Francis led prayers on Sunday from the iconic Angelus window overlooking St. Peter’s Square in Vatican City, he seemed to be issuing a pointed message for Biden. “Today, I feel compelled to ask all of you to pray for the inmates on death row in the United States,” the Pope said. “Let us pray that their sentences may be commuted or changed.” A day later, the U.S. Conference of Catholic Bishops issued a public call to action asking the faithful to contact Biden to “urge him to commute all current federal death sentences to terms of imprisonment before his term ends,” adding that Biden “has an extraordinary opportunity to advance the cause of human dignity.”

Biden’s close political ally Rep. James Clyburn of South Carolina has also called on Biden to act. Clyburn signed a letter with Rep. Ayanna Pressley of Massachusetts and other lawmakers urging Biden to use his clemency powers “to help broad classes of people and cases, including the elderly and chronically ill, those on death row, people with unjustified sentencing disparities, and women who were punished for defending themselves against their abusers.” Last month, Clyburn had privately urged Biden to pardon his son Hunter, and has recently urged him to pardon Trump to “clean the slate” for the country. 

Death penalty opponents fear Trump intends to beat his record of 13 executions from his first term. Trump campaigned on resuming federal executions and expanding their use to kill people convicted of drug trafficking and human smuggling, migrants who kill U.S. citizens and police officers, and those convicted of raping children. “We’re going to be asking everyone who sells drugs—gets caught selling drugs—to receive the death penalty for their heinous acts—because it’s the only way,” Trump said the day he launched his 2024 campaign. Such actions are unlikely. Capital punishment is not currently a penalty for federal drug violations or rape, and doing so would require an act of Congress.