President Joe Biden made history when he commuted the death sentences of thirty-seven of the people on federal death row shortly before leaving office. The slate of commutations left three people remaining on federal death row, as well as a number of people potentially subject to the death penalty who are detained in military facilities such as Guantanamo Bay Detention Camp. Nonetheless it was the most substantial set of commutations in the modern history of the federal death penalty; it almost certainly prevented President Donald Trump from making a gruesome spectacle of a parade of hasty executions in order to trumpet his toughness and flaunt his power.
Biden’s commutations were not the first time that he made death penalty history. He was the first president to be elected after explicitly expressing his opposition to capital punishment. He was accompanied by a party platform that took the same position: with its 2016 platform, the Democratic Party became the first major U.S. political party to call for an end to capital punishment, a call it repeated during Biden’s successful 2020 campaign. That plank was removed from the platform in 2024, and Vice President Kamala Harris was silent about her views on the death penalty during her 2024 presidential campaign, despite having pledged to end capital punishment while campaigning for the presidential nomination in 2019.
Biden’s almost-but-not-quite-complete slate of capital commutations was an odd way to demonstrate his “opposition” to capital punishment. As a result, Biden’s action elicited not only a predictable rebuke from supporters of the death penalty but also criticism from opponents of the death penalty, for failing both to honor his campaign promises and to follow his proclaimed moral compass.
The three people whom Biden left on death row in domestic federal prisons (not including military detention) are Dzhokhar Tsarnaev, who perpetrated the Boston Marathon bombing with his older brother in 2013; Dylann Roof, who killed nine Black churchgoers in Charleston in 2015; and Robert Bowers, who killed eleven Jewish worshippers at Pittsburgh’s Tree of Life synagogue in 2018. In explaining why he declined to commute their sentences, Biden stated that his opposition to the death penalty did not extend to hate crimes or terrorism—not exactly what most people think that being “against” capital punishment entails.
Biden’s recasting of his opposition to the death penalty should not have generated great surprise, as it is consistent with his administration’s cautious, case-by-case approach to the issue throughout his presidency. Early on, Biden’s attorney general, Merrick Garland, imposed a moratorium on executions and ordered a study of the federal lethal injection protocol (which recently concluded with Garland’s withdrawal of the protocol). But although Garland noted more general concerns about arbitrariness, discrimination, and wrongful convictions in the federal capital process, he declined to study or otherwise address those issues, leaving them instead for consideration by Congress, which (completely predictably) has done nothing about them.
Although some Democratic lawmakers sought a commitment from the Biden administration that it would not pursue any new death sentences, no such assurance was forthcoming. To the contrary, although the Biden Department of Justice (DOJ) withdrew requests for the death penalty sought by prior administrations against more than two dozen defendants, it continued to support capital prosecutions on multiple fronts. For example, the DOJ vigorously tried two capital cases that were indicted during the first Trump administration. In 2023 the DOJ capitally tried Sayfullo Saipov for deliberately driving a truck into a New York City bike path, killing eight people. The jury was deadlocked on the question of punishment, so Saipov was sentenced to life imprisonment. Later that same year, the DOJ capitally tried Bowers for the Tree of Life shooting, and he was sentenced to death—the single new death sentence handed down during Biden’s presidency.
In addition to bringing previously indicted capital cases to trial, the Biden administration defended capital convictions returned during prior administrations—most notably seeking reversal in the Supreme Court of a federal appeals court’s decision to set aside the death sentence of Tsarnaev for his role in the Boston Marathon bombing. The government’s appeal to the Supreme Court was successful, and Tsarnaev remains on death row. Finally, in the last year of his presidency, Biden’s DOJ initiated a new capital prosecution in the case of Payton Gendron, who killed ten people in a racially motivated attack in a Buffalo supermarket. Gendron’s capital trial is scheduled for September 2025. The Biden administration’s actions considered as a whole over the course of his presidency reflect a desire for carefully discriminating use of the death penalty—but not any desire to end it.
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The same can be said for Biden’s partial commutations. One reason for discomfort with Biden’s failure to include Tsarnaev, Roof, and Bowers in his mass clemency is the suspicion that it may have been motivated in part by a desire to avoid charges of hypocrisy, given that Biden’s administration had worked diligently (and recently) to place Bowers on death row and return Tsarnaev to it. And Roof’s case was likely the most high-profile indictment of the Obama administration, in which Biden served as vice president. Another reason for dismay at the exclusion of these three cases, one more frequently voiced, is discomfort with a different kind of hypocrisy—Biden’s failure to stand by the anti–death penalty stance that he took during his presidential campaign and that was in his party’s platform.
But the strongest ground to criticize Biden’s incomplete slate of commutations is not his promise breaking. Rather, Biden’s recasting of his “opposition” to the death penalty as excluding cases of terrorism and hate crimes muddies his message and mars his legacy on this issue. People tend to oppose the death penalty for one or both of two general sets of reasons. The first set of reasons sees capital punishment as fundamentally in conflict with reverence for life, respect for human dignity, and commitment to appropriate limits on the power of the state. This sort of objection can derive from religious faith or from the embrace of secular Enlightenment principles. The second set of reasons rejects capital punishment because of ineradicable problems in its administration, which inevitably produces arbitrary, discriminatory, and unreliable verdicts. To contend, as Biden did, that the death penalty should nonetheless remain available for the “worst” cases is to reject both of these grounds—to say that human life and dignity do not matter, and that systemic injustice does not matter when an individual’s crime is bad enough.
Debates about the death penalty always seem to have a “what about him?” moment. Supporters of the death penalty inevitably turn to Adolf Hitler or some other epitome of evil as examples of why we must maintain capital punishment. In the 1988 presidential debate between Michael Dukakis and George H.W. Bush, Dukakis was famously asked whether he would maintain his opposition to the death penalty if his own wife were raped and murdered. This was a “what about him?” moment of the first order. Many have argued that Dukakis’s staunch defense of his anti–death penalty position in this televised debate lost him the election on the spot.
But as Dukakis surely knew, to accept a “what about him?” exception to opposition to the death penalty is to concede the debate on the issue. To almost oppose the death penalty is to do exactly the opposite; it is to accept the view of death penalty supporters that the values of human life, human dignity, and systemic justice must yield to the imperative to impose the ultimate punishment on some offenders.
Biden’s incomplete slate of commutations saved thirty-seven lives, but it ultimately lost the moral argument about what is at stake with state-sanctioned executions. If Biden had had the courage to stand by his stated conviction, it is likely that Rome would have lit up the Colosseum to honor that decision, as it has done in the past to mark occasions of death penalty abolition and commutation. This would have been a fitting and dramatic recognition, akin to the spectacle of the White House illuminated in rainbow colors during the Obama administration to celebrate the Supreme Court’s 2015 decision in Obergefell v. Hodges recognizing marriage equality. But Biden chose to send a message that was more of a whimper than a bang on the ultimate justice of capital punishment.
Biden’s choice to keep the most aggravated capital cases slated for execution might nonetheless have a silver lining in some conceivable political future. Biden’s decision was almost certainly more aligned with the views of centrist voters than a complete set of commutations would have been. The death penalty has been dramatically falling in popularity and use over the past decades, with twenty-three states now having abolished it and three more with longstanding gubernatorial moratoria in place. Many others have not conducted any executions in a decade or longer. Only a bare majority of poll respondents report supporting capital punishment and, among respondents born after 1980, the majority swings against the death penalty. But extreme cases tend to temporarily swing this trend back toward support for the death penalty. For example, when Tsaranev was being tried in federal court in abolitionist Massachusetts, more poll respondents in the Northeast supported the death penalty for him than had recently reported support for the death penalty in the abstract. Biden’s restraint may prevent his decision from being an albatross for future Democratic candidates, allowing them a bit more wiggle room on the issue, especially if (sadly, when) there is some new atrocity dominating the news.
The future is, as always, uncertain. But the current political moment promises the likelihood of much greater use of the federal death penalty under President Trump, who has promised not only to maintain but to expand it—even at a time when nationwide practice and public opinion is trending dramatically in the other direction. Biden’s caution regarding completely clearing federal death row may have seemed more politically palatable in the moment, but it missed an opportunity to boldly endorse an alternative vision toward which the arc of history is clearly bending.
Image: Department of Justice
