Will Joe Biden end the federal death penalty? Can he?

Groups opposed to capital punishment have been lobbying Joe Biden since the last election to put an end to the practice entirely. Thus far we haven’t seen any executive orders along those lines nor public comments on the subject. Jen Psaki was asked about it at a recent press conference but she simply said she had “nothing to preview” on the issue. But some sources inside the White House (anonymous, as usual) say that Biden has been talking to people about it and he does plan to take action. Biden has publicly said in the past that he opposes capital punishment in principle, so this wouldn’t be much of a surprise, but what can he really do? (Associated Press)

Joe Biden, the first sitting U.S. president to openly oppose the death penalty, has discussed the possibility of instructing the Department of Justice to stop scheduling new executions, officials have told The Associated Press.

If he does, that would end an extraordinary run of executions by the federal government, all during a pandemic that raged inside prison walls and infected journalists, federal employees and even those put to death.

The officials had knowledge of the private discussions with Biden but were not authorized to speak publicly about them.

Some of the most vocal opponents of the death penalty have demanded that Biden literally bulldoze the federal death chamber in Terre Haute, Indiana. That’s not any sort of permanent remedy, however.

The death penalty at the federal level is on the books because it continues to exist in federal law. Even if the Supreme Court were to strike it down again, Congress would still need to vote to amend those laws and remove capital punishment as an option. This isn’t the sort of thing that Joe Biden can do with an executive order or proclamation, even though those tools have comprised virtually his entire presidency thus far.

What Biden can do, however, is end executions during his administration. He can instruct the Justice Department not to schedule any more executions for the remainder of his presidency. In other words, he can’t stop convicts from being sentenced to die, but he can prevent the sentence from being carried out. Death row inmates across the country could then breath a sigh of relief for the better part of four or eight years.

Would a repeal of the federal death penalty be able to pass in Congress in 2021? While controversial, capital punishment has been allowed for most of the country’s history and continuously from 1976 until the present day. Not even all of the Democrats are opposed to keeping it as an option for the worst offenders, though support has typically been stronger among Republicans in the modern era. Any congressman or senator thinking of voting in favor of repeal will be asked if they really want to commute the sentences of the Boston Marathon bomber and Dylann Roof. Those won’t be easy questions to answer.

So in short, with one phone call, Joe Biden can end federal executions for the rest of his time in office. But as with all efforts to run the country via the phone and the pen, such a change can be wiped away just as easily be a new president.