Human and civil rights groups are therefore giving the administration a public nudge: halting the Trump team’s surge of executions is not enough. “[I]f there is one thing that the waning months of the Trump presidency also made clear, it is the horrendous implications of simply having an informal federal death penalty moratorium in place,” the signers argue.
In the letter, the groups point out specific actions Biden could take immediately, without Congress. Biden could reinstitute the moratorium, but could also withdraw authorization for all pending death penalty trials and order federal prosecutors not to seek the death penalty in their future cases. He could “dismantle” the federal death chamber being used for each of the executions. He could rescind Barr’s modifications to regulations that allowed lethal injections to go forward despite substantial concerns over the drugs being used.
But the most important step Biden could take would be to use his new presidential powers to commute or reduce the sentences of those currently on death row, thus resetting the population of the federal death row to zero and mooting the other reforms. Any true end to the federal death penalty will require legislation.
That legislation may not be far off. It is now known that the death penalty is not an effective deterrent to begin with, and that carrying out executions is more expensive than lifelong imprisonment—thus conferring not even a financial benefit to the government. A series of botched executions have proven the “humane” nature of lethal injection to be fraudulent. And, aside from all the rest, scores of death row prisoners have now had their innocence proven, now that DNA testing and public oversight has been brought to bear. It is incontestable that the United States has been executing innocent prisoners along with guilty ones—a price no allegedly civilized nation should stomach.
We probably cannot read too much into the Biden team not yet announcing their capital punishment reform plans, however. Republicans have been persistent in blocking Biden’s attorney general pick, Merrick Garland, who will not even receive a confirmation hearing in the Senate until Feb. 22. Biden’s team may be looking to make good on his campaign pledges with an encompassing reform strategy. And there are no imminent executions—though those on death row and their legal teams will balk at any supposition that the current delay is without cost.
In these particular months, there may be a new reason to abolish the death penalty from the tools of government as compelling as any of the others. Removing from the federal toolkit a weapon universally favored by authoritarian governments against their perceived opponents or scapegoats is a worthwhile endeavor, if only to yet again differentiate between modern, democratic government and an American subculture increasingly enamored with violence as political trump card. It used to be a more academic concern; immediately after an attempted overthrow of government, it seems less so.
Any state-sponsored execution, no matter how supposedly justified, is inherently political in nature, and by definition. It is the state doing the executing, and the state that has set the rules of who is to be killed and in what order. As we have seen, who is thought to be “deserving” of death shifts with political and cultural winds, but upon the ascendence of any authoritarian power in a nation, it shifts invariably to include the authoritarian’s own targets. And we have seen the glint of that here too as the “moderate” right became increasingly intolerant of policing the violent far-right and instead steadily shifted resources into pursuing anti-war protestors or the illusory demons of antifa.
As dark as the thought is, further distancing government from any supposed authority to execute anyone, even the most vile of criminals, might be a pragmatic action to take as the nation grapples with a still-escalating fascist movement that includes members of both House and Senate as its allies. It is not that the authoritarian-minded or seditious would abide by any such notions, of course. But it would lengthen the distance from A to B by just a fractional little bit, and we could use as many inches there as we can get.
In the end, though, the death penalty should be abolished because it is a tool incompatible with civilized governance. It is more costly, it is ineffective, and it is used against the innocent. It fails in all its alleged goals, and wraps new crimes around government’s neck with its misuse. We can easily end it, instead keeping the perpetually dangerous perpetually imprisoned using the vast national infrastructure built for those purposes.