Anti–death penalty activists want Joe Biden to commute all current federal death sentences — 40 of them — to life sentences. This would be one more act of contempt for the law in a presidential term full of them.
There are serious arguments about the continuing use of the death penalty, both as a matter of public policy and as a matter of moral theology. But those are, fundamentally, questions that in a representative democracy should be submitted to the legislature. Biden could have made a major push to get Congress to repeal the federal death penalty, either across the board or in particular statutes (many of which he voted for as a senator). He has not done so, and would now be undermining Congress.
The president is charged explicitly by the Constitution to “take Care that the Laws be faithfully executed.” That is as sacred a trust of care as our founding charter imposes. Presidents may pardon particular offenders, and in some cases may even extend pardons and commutations across some larger group (although the latter power ought to be used most sparingly), but to simply mass-commute the sentences of a large number of offenders for disparate offenses, solely as a means of thwarting the execution of a particular kind of punishment, is not mercy; it is vandalism. It bespeaks contempt for both the lawmaking process and the juries that labored over those sentences.
Biden already took a step in that direction when Merrick Garland halted all executions in 2021. He is now being urged to commute the death sentences currently in place for the express purpose of thwarting Donald Trump’s declared intention — stated on the campaign trail during the election — to lift the moratorium. Trump was duly elected by the people to take care of the execution of the law, and he will take the same oath as Biden. He has a popular mandate to carry it out.
The 40 offenders in question include some of the strongest possible cases for use of the death penalty. Fully a quarter of them were sentenced to death for killings inside prison, and two others earned their death sentences for killings following a prison escape. Others include the unquestionable perpetrators of notorious acts of mass terror, such as Dzhokhar Tsarnaev (the Boston Marathon bombing), Dylann Roof (the Emanuel AME Church mass shooting in Charleston), and Robert Bowers (the Tree of Life Synagogue mass shooting in Pittsburgh). Still others killed cops or witnesses or engaged in murder for ransom, hire, or organized crime. We do not say that even an unqualified supporter of the death penalty would find no case on the list worthy of clemency, but to commute all of these sentences at once can be justified by no motive other than to resist the death penalty across the board.
Some are explicitly calling upon Biden to commute the sentences on the ground of his Catholic faith. While we hold out hope for the president’s repentance in the interests of his immortal soul, his administration has pursued policies of implacable hostility to many core Catholic teachings, not least to the sanctity of human life. The sincerity of invoking faith only now would be rightly called into question — especially since the Church does not teach that public officials have a duty to subvert duly enacted death penalty laws. Moreover, the president’s oath to the Constitution contains no exceptions for conscience. If he cannot discharge the duties of his office for religious reasons, Biden should resign.
It’s not the president’s job to nullify federal laws. Abraham Lincoln hated the death penalty and anguished over every case in which he was asked to commute it. He did so often, given the frequency with which the penalty was applied in his day, especially in wartime. But he did so with scrupulous care for the facts of particular cases. Following a bloody uprising of the Dakota Sioux in Minnesota in 1862 at the height of the Civil War, Lincoln commuted 264 death sentences in spite of the public’s outcry, commenting that he would not “hang men for votes.” But understanding his duty to enforce the law and protect the public, he nonetheless signed off on the mass execution of 38 of the leaders of the insurrection — the largest such execution in American history.
A more apt parallel for Biden would be George Ryan, the outgoing Republican governor of Illinois who mass-commuted all of the state’s death row inmates in 2003. Ryan was facing criminal prosecution himself, which resulted in his spending six years in federal prison. His act of clemency was widely understood at the time as a desperate effort to buy friends he would need to escape his own criminality. The law, in the end, caught up with Ryan.
It would be one further shabby coda to Biden’s presidency — maybe not the last — if he simply nullified the law imposing death on terrorists, mass shooters, and other perpetrators of monstrosities in his own misguided quest for absolution.