With President Joe Biden’s term winding down, the subject of clemency has heated up. Biden now finds himself in a bind familiar to many of his predecessors. The bind arises because clemency is a vast and virtually unregulated power. Presidents can use it to show mercy to political allies, corrupt cronies, and people they think have been treated unfairly. They can even spare family members. Or they can refuse to use the clemency power at all. They don’t need a reason to grant clemency other than that they choose to do so. As a result, any time presidents grant pardons and reprieves, they risk being denounced as arbitrary, capricious, or corrupt.
Biden’s recent pardon of his son Hunter stands as a vivid example of the risks presidents face. Even Democratic Senator Bernie Sanders said it set a “dangerous precedent.” And only twenty percent of the American public approve of what Biden did.
Since then, Biden commuted the sentences or pardoned 1500 people in what the Associated Press labeled the “biggest single-day act of clemency.” With less than a month remaining in Biden’s time in the White House, many are asking, “What next?”
For anyone opposed to capital punishment, the answer is clear: Biden should commute the sentences of everyone on the federal death row.
Those calling on him to do it include people like Democratic Reps. Ayanna Pressley of Massachusetts, James Clyburn of South Carolina, Mary Scanlon of Pennsylvania, and Ilhan Omar of Minnesota, as well as progressive groups and religious organizations.
On December 9, a coalition of 134 “civil liberties, civil and human rights, faith-based, academic, and social justice organizations” joined the effort to persuade Biden. A mass clemency would “bring the United States closer in line with the nearly two-thirds of countries that have fully abolished capital punishment.” They asked the president “to reflect on what a higher sense of morality and duty calls upon us to do.,” arguing that clemency for people awaiting execution would be an essential step on “(t)he road to equity and reconciliation.”
I agree with them. Biden may not be able to end the federal death penalty, but he can and should ensure that no one currently on federal death row will be executed when President-elect Trump returns to the White House.
Many of the forty people awaiting execution at the federal facility in Terre Haute, Indiana, are there because of arbitrariness, discrimination, or official misconduct in the death penalty system. Biden could commute their sentences and claim that it was just that he did so.
But others on federal death row pose hard choices for Biden and may make it difficult to persuade him to issue a mass commutation. The hardest of those choices involve Dylann Roof, who killed nine Black people at a church in 2015; Dzhokhar Tsarnaev, one of the Boston Marathon bombers; and Robert Bowers, who murdered 11 people at the Tree of Life Synagogue in Pittsburgh, Pa.
It is a big ask to suggest that the president commute their sentences, especially since in the first two of those cases, the administration fought in the courts to uphold their death sentences, and in the Bowers case, the administration went forward with a death penalty prosecution begun under President Trump.
As the Associated Press reported last January, referring to the president’s views on the death penalty, “President Joe Biden campaigned in part on a promise to abolish it but has taken few concrete steps to do so. The Justice Department has… shown a continued willingness to use it in certain cases.” It “has authorized the continuation of only two death penalty cases he inherited, including another mass shooting at a Pittsburgh synagogue motivated by hate.”
That is why those who do not want the president to commute all federal death sentences are spotlighting Roof, Tsarnaev, and Bowers. Let me offer a few examples of their arguments.
The National Review recently pushed against any mass clemency. It claimed that grating clemency to “unquestionable perpetrators of notorious acts of mass terror…. can be justified by no motive other than to resist the death penalty across the board.”
“It would,” the Editorial Board contended, “be one further shabby coda to Biden’s presidency … if he simply nullified the law imposing death on terrorists, mass shooters, and other perpetrators of monstrosities in his own misguided quest for absolution.”
It “is not mercy; it is vandalism.”
Boston Globe columnist Jeff Jacoby echoed this theme. “Biden,” he said, “is being urged to issue a mass commutation of the 40 killers on federal death row not as an act of compassion — not because they merit mercy — but as a way to invalidate a federal law that the activists disapprove of. “
Jacoby was particularly exercised by the thought that Biden might spare the lives of Tsarnaev and “the other monsters on the federal death row.” Unsurprisingly, he noted, "Those monsters include Dylann Roof and Robert Bowers.”
Jacoby concluded that such monsters “deserve…. the worst penalty our legal system allows.”
Even Republican Sen. Mitch McConnell, R-Ky., has joined the fray. Like the others, his criticism focused on Roof, Tsarnaev, and Bowers. As he put it, If the president grants a mass clemency, “it would mean commuting the death sentences of the mass murderer who slaughtered black churchgoers at Mother Emanuel in Charleston….and the perpetrator of the massacre at the Tree of Life Synagogue in Pittsburgh.” McConnell took pains to point out that none of them “were victims of systemic racism” or had “inadequate counsel.” With these comments, he was trying to foreclose arguments that a Biden commutation could be justified to rectify miscarriages of justice.
McConnell contended that a mass commutation “would mean that progressive politics is more important to the President than the lives taken by…murderers.”
And he bored down on Jacoby’s designated death row monsters. Granting them clemency, McConnell concluded, “would mean that society’s most forceful condemnation of white supremacy and antisemitism must give way to legal mumbo jumbo.”
McConnell speaks as if he does not understand what clemency is. Anyone who does would know that clemency cannot be rightly characterized as a form of “legal mumbo jumbo.” Quite to the contrary, the law stays out of the way and gives the president tremendous leeway. So, presidents like Donald Trump have loved the pardon power.
Jacoby frames things differently, saying that Roof, Tsarnaev, and Bowers do not deserve mercy. I agree, but only because no one can deserve mercy. As I have written, “Unlike justice,… mercy is precisely what cannot be deserved.”
In fact, even some who oppose capital punishment might agree that Roof, Tsarnaev, and Bowers deserve a severe punishment for their unspeakable crimes. When Biden commutes their sentences, as I hope he will, he should make clear that they are “perpetrators of monstrosities.”
But that does not settle the question of how our country should respond to their horrible crimes. Now is the time for Biden to say that the government should not put to death even people who do unspeakable things.
He will have a heavy burden of persuasion. It is a lot easier for abolitionists to convince people that we should not risk executing the innocent or perpetuating racial discrimination than it will be to get Americans to agree that Roof, Tsarnaev, and Bowers should be spared.
But opposing the death penalty means opposing it in even heinous cases. The American legal system offers other means of punishment; indeed, it may be that enduring a lifetime of imprisonment is the harshest punishment,
If the state should not be in the business of killing its citizens, and President Biden has said many things that suggest that he holds to that view, then he should grant clemency to everyone on federal death row, even to the worst of the worst.
Unless the president and others who oppose capital punishment are willing to say and do so, capital punishment will never be abolished in the United States. Now is as good a time as any to begin that work.
