How Biden can kill the death penalty

As Joe Biden assumes the presidency in January, he faces a life-and-death decision: the future of the federal death penalty.

After being halted during the latter years of the Obama administration, Donald Trump’s Justice Department has already scheduled more federal executions than any administration in the last 130 years. Five executions are currently scheduled ahead of Inauguration Day, two of them in the last week of the Trump presidency. These executions make the United States an outlier, some even would say a pariah. Under Donald Trump, in 2019, the United States joined just China, Egypt, Iran, Iraq and Saudi Arabia in executing more than 20 people in a single year.  

On Jan. 21, President Biden, who campaigned as an opponent of the death penalty, has an opportunity to halt federal executions with the stroke of a pen. Lending his credibility to the cause, he might convince the states to abandon capital punishment too.   

Multiple studies have shown that the death penalty is not cost effective, that it does not deter crime and that it is disproportionately exercised against people of color. I should know. I helped lead two such studies. 

What did we show? 

First, there is tremendous disparity in the resources that capital defendants receive to defend themselves and mitigate their sentence. In some cases, defendants are granted excellent attorneys who, working with investigators, psychologists or mitigation experts, uncover key evidence. In too many other cases, however, the attorneys reject expert assistance, which the courts do not require.

Second, these resource differences are largely independent of the facts of the case. Attorneys do not seem to work hard on the “good” cases and give up on the “tough” ones. Instead, federal judges serve as the gatekeepers to quality defense. Jurists in conservative communities, appointed by Republican presidents and presiding in districts with heavy felony caseloads are more likely than their brethren to appoint inexperienced defense lawyers considered less competent by their peers. It is a two-step process: judges appoint less skilled lawyers, who fail to employ as many resources in defending their clients.

The result, unfortunately, is a federal system of capital defense in which those suspects whose defenses receive the least resources face twice the risk of being sentenced to death at trial. 

As we found, just 19 percent of federal defendants were sentenced to death when the resources for their defense rose above the 30th percentile. However, when defense expenditures fell below this floor, a defendant’s risk of a death sentence jumped to 44 percent. The greatest predictors for these results were the location and identity of the presiding judge who chose the defense attorneys. In fact, 40 percent of all federal death sentences have been imposed by federal courts in just four states: Louisiana, Missouri, Texas and Virginia.

It’s not as if the federal courts are unaware of these deficiencies. They have studied the issue multiple times, each time confronting the reality that they, in fact, are partially accountable for the unfairness in the process. Federal judges are responsible for the selection of capital defense attorneys and authorize the resources allowed to the defense. But, even after multiple reports and warnings, the judges refuse to address the problem, or even acknowledge it in some places. When the judiciary will not act to preserve equal justice under law, then the president–and the prosecutors who answer to him–must respond.

Federal capital cases are brought by the U.S. Department of Justice, which starting in late January will reflect Biden’s priorities. Biden has said he “will work to pass legislation that eliminates the death penalty at the federal level.” Legislation is sure to face opposition from lawmakers who mistakenly associate capital punishment with being tough on crime. But Biden can halt the federal apparatus of death by simply refusing to carry out further executions on his watch and ending the practice of capital charges in federal cases. Ideally, as Biden himself acknowledges, this decision might “incentivize states to follow the federal government’s example.”

We all deserve a criminal justice system that keeps us safe, treats us equally, uses fair processes, spends money wisely and arrives at accurate results. This is especially true when crimes are heinous and when punishment is irreversible. However, the federal death penalty resembles a game of Russian roulette, where a defendant’s risk of execution turns as much on the resources he is given to defend himself as on the nature of the crime and the strength of the evidence.

Justice demands that this practice end. If the courts won’t do it themselves, then President Biden must act. 

Jon Gould, foundation professor of criminology, justice and law and director of the School of Criminology and Criminal Justice at Arizona State University, was a senior policy adviser in the U.S. Department of Justice during the Obama administration.