Empty Federal Death Row
Garland's execution moratorium is only a first step. President Biden should commute every federal death sentence
Yesterday, Merrick Garland announced a moratorium on federal executions. This has become the signaling mechanism for politicians on the death penalty- Gavin Newsom did the same thing in California a while back.
Anything that stops the death penalty is generally good. The death penalty is barbaric, it doesn’t deter crime, it is costly (because we rightly insist on all sorts of due process protections before any execution takes place), and we can easily refuse to parole the small number of murderers and other life prisoners who are so dangerous that they will never be rehabilitated and can never again be among the general populace. So obviously, I support Garland’s moratorium.
And yet, moratoria are, in a sense, very cheap. The death sentence continues to theoretically be in effect. The Attorney General or Governor can change his mind, or the next Chief Executive could reverse the decision. And think about that from the standpoint of an inmate on death row- OK, you have been granted a reprieve, but you don’t know for how long. Heck, even for pro-death penalty victims groups, it hangs out for them the tantalizing theoretical possibility of a later reversal. “Closure” is an overused term with respect to violent crime, but leaving everything in limbo for a few years is far from an optimal solution.
Which is why President Biden needs to just bite the bullet and announce the commutation of every death sentence. The Constitution is unambiguous that he has that power, and since AG Garland has already announced that we aren’t executing anyone, it’s not like there’s any additional political cost to commuting the sentences. Death penalty supporters are already mad about this anyway.
President Biden can and should also rewrite the rules of Guantanamo military commissions to prohibit the death penalty.
Garland should do more too. He should instruct his prosecutors to never seek the death penalty, to waive it in all pending cases where it is already being sought, and to confess error in every appellate or habeas case where a death sentence has already been imposed. Some DOJ prosecutors won’t like this- in our morally grotesque legal system, winning death penalty cases has long been a ticket to career advancement for prosecutors (rather than being seen as complicity in killing someone, sometimes a person who was a teenager when he committed his offenses, or who has a mental disability). But if some prosecutors quit over this, they shouldn’t be missed- we’d be losing the most bloodthirsty and least sympathetic members of the group.
The point is, the moratorium, while welcome, is symbolic. The federal government can actually stop executing people, period, and make it extremely difficult for the next President to start again. It should do so.