Biden administration should be judged on how it deals with death row cases generally

This month brought news of another challenge to the Biden administration’s handling of capital punishment: Jurijus Kadamovas, an inmate on federal death row, filed suit on Jan. 12 in an Indiana federal court, claiming that the conditions of his confinement violate his constitutional rights and those of everyone else held there.

He wants the court to order the administration to do what states like Arizona, Florida, Louisiana, Pennsylvania and South Carolina already have done, namely end the use of solitary confinement for everyone sentenced to death.

This suit is a reminder that the Biden administration’s treatment of the people currently on federal death row — or its response when they allege that their rights have been violated — is as important in judging its death penalty record as what it does in high profile cases.

The press has given little attention to this administration’s record in that regard, preferring instead to focus on a few high-profile cases.

A Jan. 22 CNN report typifies that coverage. It starts by declaring that “Two years into his presidency, Joe Biden has taken few substantial steps to live up to his campaign promise to abolish the federal death penalty.” It notes that the Justice Department “has continued to back death sentences for some federal defendants” including in the high-profile cases of Dylann Roof, Boston Marathon bomber Dzhokhar Tsarnaev, and Sayfullo Saipov, who is on trial as a terrorist for killing eight people with a truck in 2017 in New York.

CNN calls attention to the fact that “the Justice Department has instituted a moratorium on federal executions, temporarily halting them from being carried out while officials review Trump-era changes to policies and protocol to ensure … its ‘commitment to fairness and humane treatment.’”

But CNN and other news outlets have not discussed the Biden Justice Department’s policy of continuing vigorously to defend all existing federal death sentences nor have they investigated its continuing use of solitary confinement on the federal death row.

The Biden administration is defending death sentences even when there are concerning issues like intellectual disability or severe mental illness of defendants, or racial bias and prosecutorial misconduct in their cases — which hardly seems consistent with a “commitment to fairness and humane treatment.”

In September 2008 a federal jury in Tennessee found Rejon Taylor guilty of carjacking resulting in death, kidnapping resulting in death, and using a firearm to commit murder while committing carjacking. Taylor was 18 at the time of the crime, the minimum age under existing law at which someone can be sentenced to death. A Black man, he was accused of killing a white victim. He had no history of violence or prior criminal record and suffered from temporal lobe epilepsy and Post Traumatic Stress Disorder. Yet the jury recommended — and the judge imposed — a death sentence.

They did so even though, during the sentencing hearing, the prosecutor used inflammatory language, variously calling Taylor a “stalking wolf” and “monster.” He told the jury that they had a duty to “kill the wolf.” The jury included 11 white jurors, some of whom reportedly were heard talking about making an example of him because he’s Black.

We know that 40 percent of the prisoners currently under federal death sentences are Black (compared to less than 13 percent of the U.S. population) and that there are Black men on federal death row who were convicted and sentenced by all-white juries.

And like Taylor, many prisoners currently on the federal death row were age 21 or younger when they committed their offense.

Yet, despite these facts about race and age, the Biden Justice Department has consistently opposed Rejon’s lawyers’ efforts to prove that his death sentence violates federal law.

The case of Bruce Webster offers another example of the administration’s posture in dealing with those who suffer from an intellectual disability. Webster was 21 when he and three other men kidnapped 16-year-old Lisa Rene in Dallas, Texas. They subsequently took her across the state line to Arkansas where they sexually assaulted and murdered her.

Webster was sentenced to death even though, as the Minneapolis Star Tribune notes, he endured “a physically and sexually abusive childhood, and he had IQ scores low enough for a doctor to find that he had the functioning ability of a 6- or 7-year-old.”

That sentence was handed down in 1996, six years before the U.S. Supreme Court decision in Atkins v. Virginia banned the execution of people with intellectual disability.

Twenty three years later, in 2019, after his new lawyers found out that the government failed to disclose corroborating evidence about his intellectual disability at the time he was sentenced, a federal district court threw out his death sentence. A year later, the Seventh Circuit Court of Appeals affirmed that decision. Nonetheless, Bruce Webster remains on death row today because the Biden Justice Department insists that his resentencing should be done in Texas rather than Indiana where he is currently incarcerated. Inexplicably, they want it done in a state long known as “ground zero” for the death penalty in America.

The department’s “my way or the highway” position on the question of where Webster should be resentenced is only the latest twist in what one of the judges in his case once called Webster’s “Kafkaesque” situation.

In the end, the Biden administration may not, as CNN reports, be able to persuade Congress to end the federal death penalty, but it can and should act now to provide “fairness and humane treatment” for people already sentenced to death. It should take executive action to alleviate the miserable conditions on death row highlighted in the recently filed lawsuit and end its opposition when inmates seek legal redress for the injustices that put them there in the first place.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including Gruesome Spectacles: Botched Executions and America’s Death Penalty and  Lethal Injection and the False Promise of Humane Execution. The views expressed here do not represent Amherst College.