Biden needs to act on growing anti-death penalty sentiments

The flattening of public discourse — political, social, moral and ethical — into a simplistic left-right binary is a disturbing trend that too few of us push back against. People are encouraged to live in their echo chambers through news outlets tailored to confirm their worldviews and social media feeds custom-designed to reinforce their biases. 

This polarized discourse has created a false narrative around the death penalty that relies on simplistic and overgeneralized notions of our country’s partisan divide. It is a narrative that, while easy to communicate, ignores the diversity of voices expressing serious concerns about how the death penalty operates in America. 

For instance, the authors of this op-ed belie that simplicity. One of us is a former Democratic U.S. senator from Wisconsin, a state that has not had the death penalty since 1853, and who has worked tirelessly throughout his public life to end the death penalty. 

The other is the former Republican-appointed United States attorney for Utah — the top federal prosecutor in that state — who believes that the poor implementation of the death penalty fails to achieve the increase in public safety its proponents promise and brings with it a litany of concerns, including wrongful convictions, the risk of further traumatizing victims’ families and its high financial cost.

We both voiced strong objections when Attorney General Bill Barr reinstated the federal death penalty and again when President Trump refused to consider clemency in several instances where questions of competency and sufficiency of evidence were substantial. 

The fact that the decision to administer the federal death penalty has changed based upon who the president or attorney general is at the time has resulted in troubling inconsistencies in its application. This defies the very essence of the constitutional aim of equal protection under the law. Until Congress or the Supreme Court eliminates the federal death penalty, we both believe that it is critical for President Biden to be willing to use his constitutional authority to commute the death sentences of many, if not all of those on federal death row to appropriate terms in prison.  

The Trump administration’s unprecedented executions in the face of serious constitutional or evidentiary concerns in most of the cases prompted widespread, bipartisan condemnation, with faith leaders, correctional officers, prosecutors, judges and family members of murder victims demanding an end to Depart of Justice’s (DOJ) rash of executions. These entreaties were not based on partisan beliefs, but on the fact that, as in so many death penalty cases, the people facing execution had raised claims of intellectual disability, severe mental illness, racial bias, prosecutorial misconduct, and other serious issues that a court had never been fully addressed.

Biden’s opposition to the death penalty, which he first announced during the presidential campaign, and Attorney General Garland’s recent announcement of a moratorium on federal executions have also garnered broad support from across the political spectrum, as have calls for Biden to commute all federal death sentences. In the first six months of his administration, Biden has heard from bipartisan groups of current and former prosecutors and public defenders and former judges and scores of civil rights organizations, including organizations representing Catholic, Protestant and Jewish faith traditions, who support commuting the sentences of those on federal death row. 

We are not unaware or willfully ignorant of the deep divisions that plague America. The death penalty, however, is no longer the polarizing issue it once was. 

Sixty percent of people in the United States now prefer life without parole over the death penalty as a punishment. The same poll found only 36 percent of people prefer the death penalty. Few “hot button” issues have such broad support, underscoring the bipartisan nature of the issue. 

Today, people from a range of political, professional and faith perspectives recognize, as we do, that the death penalty has been a failed policy serving only to drain resources and undermine the confidence of a majority of the country in our justice system. 

Public conversations about the death penalty must continue. And an honest conversation about the death penalty cannot rely on lazy, outdated stereotypes of Democrats versus Republicans that fail to recognize the shared values that lead many to oppose it. Rather, the conversation is strengthened by recognizing just how large this tent is. 

As we move together to end this failed policy, Biden can and should redress the entrenched unfairness of the inconsistent use of the federal death penalty by being willing to commute the sentences of those on federal death row. 

Russ Feingold is the president of the American Constitution Society and served as a United States senator from Wisconsin from 1993-2011.

Brett Tolman is the former United States Attorney for the District of Utah.