Letter to President Biden to commute the sentences of those on federal death row

SUMMARY

City Bar President Muhammad U. Faridi and the Capital Punishment Committee wrote to President Biden urging him to honor one of his campaign promises by commuting the sentences of those on federal death row.

Citing the 2020 Biden campaign’s declaration that “Biden will work to pass legislation to eliminate the death penalty at the federal level and incentivize states to follow the federal government’s example,” and acknowledging that the time to pass federal legislation to accomplish that has run short, the City Bar urges President Biden to use the Constitution’s Presidential “Power to grant Reprieves and Pardons for Offenses against the United States.”

The City Bar requested that President Biden use his commuting power because 1) Americans are rightfully concerned that the death penalty has the potential of leading to the execution of innocent people; 2) the death penalty is ineffective at reducing crime and life sentences achieve the same goal as capital punishment — preventing dangerous criminals from reoffending; 3) capital punishment is becoming more unpopular in the United States and is globally disfavored; 4) the death penalty, in practice, is racially biased and favors those who can afford their own representation; 5) American taxpayers spend an extraordinary amount of money maintaining the death penalty, far more than what would be spent on inmates who were sentenced to life in prison without the possibility of parole; and 6) the death penalty as administered is cruel and unusual.

REPORT

President Joseph R. Biden, Jr.
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Public@who.eop.gov

RE: Commutation of Federal Death Sentences

Dear President Biden:

We write on behalf of the New York City Bar Association, one of the nation’s oldest and most respected bar associations.[1] We write to request that, in the last two months of your tenure, you make good on a promise about the federal death penalty that you made to the American people when you were running for the presidency. During your 2020 campaign, your campaign declared that “Biden will work to pass legislation to eliminate the death penalty at the federal level and incentivize states to follow the federal government’s example.”[2] We understand that the time to pass federal legislation of the type that you envisioned has run short, but that does not leave you without options. Our country’s Constitution grants the President the “Power to grant Reprieves and Pardons for Offenses against the United States.” We request that you use that power to commute the sentences of those on federal death row. We make this request for several reasons.

First, Americans are rightfully concerned that the death penalty has the potential of leading to the execution of innocent people. According to a 2021 Pew Research Center survey, 78% of Americans believe that “there is some risk that an innocent person will be executed.”[3] Moreover, according to the Innocence Project and the Death Penalty Information Center, since 1973, at least 200 people have been exonerated from American death rows—a staggering number on its own but even more troubling because these people were slated to be executed.[4] Your 2020 campaign website also expressed concern regarding the possible execution of innocent people: “Over 160 individuals who have been sentenced to death in this country since 1973 have later been exonerated.”[5] There can be no greater miscarriage of justice than the execution of an innocent person.

Second, the main justifications for supporting the death penalty are demonstrably flawed. There can no longer be any serious debate that the death penalty is ineffective at reducing crime and life sentences can incapacitate dangerous criminals. Capital punishment proponents claim that the death penalty is a deterrent to those contemplating committing crimes, but there is no evidence to support this claim. As the National Institute of Justice and the National Academy of Sciences have found, “there is no proof that the death penalty deters criminals” and that research on the effect of the death penalty “is uninformative about whether capital punishment increases, decreases or has no effect on homicide rates.”[6] Notably, a study on the death penalty’s connection to homicide rates found that in four states that had imposed a moratorium on capital punishment, none saw an increase in homicide rates.[7] Death penalty supporters also argue that dangerous criminals must be completely incapacitated. However, commuting someone’s death sentence does not mean letting them go free, instead the sentence would become a life sentence without the possibility for parole. This sentence achieves the same goal as capital punishment—preventing dangerous criminals from reoffending.[8]

Third, capital punishment is becoming more unpopular in the United States and is globally disfavored. According to a 2023 Gallup poll, 60% of Americans believe that life imprisonment would be a better punishment than the death penalty for a capital crime.[9] Twenty-three states have abolished the death penalty and of the remaining twenty-seven states, thirteen have not carried out an execution in at least a decade.[10] Globally, by continuing to use the death penalty as a form of punishment, the United States remains the only Western nation that has not abolished the death penalty.[11] According to capital punishment scholar, Ronald Tabak, “[t]he United States remained one of the world’s leading executioners in 2023. Among the others were China, Iran, Saudi Arabia, Somalia, North Korea, Yemen, and Vietnam.”[12] The United States is one of the only democracies on this list.[13] While other countries have moved beyond capital punishment, the United States remains stuck in the past.

Fourth, the federal death penalty is, in practice, racially biased and favors those who can afford their own representation. As of the date of this letter, there are forty people awaiting federal execution. Of these forty inmates, 55% are people of color.[14] Black people are grossly overrepresented on the federal death row: while accounting for only 13.7% of the American population, they make up 37.5% of individuals on the death row.[15] One of every three inmates on the federal death row is Black. Not only is death row disproportionately filled with Black men, but the decision to pursue the death penalty has been overwhelmingly applied in cases where a Black person has been accused of murdering a white person. Shockingly, almost seventeen times more Black people have been executed for killing a white person than white people for killing a Black person.[16] The disproportionate sentences may be explained by the fact that federal death sentences largely come from the same set of federal circuits or even federal districts. Two prominent scholars, John Nidiry and Ruth Friedman, noted that these sentences “are situated primarily in states and former territories that clung to the institution of slavery and fiercely resisted Reconstruction efforts. Of the current federal death sentences, 65% were imposed in just three . . . federal circuits that encompass many of those same states and territories.”[17] Specifically, in the Fifth Circuit, three-fourths of men sentenced to death since 1973 have been people of color and in both of Virginia’s federal districts and the Eastern District of Missouri, every person sentenced to death has been a person of color.[18] Beyond race, those who cannot afford their own representation may not be getting the best legal assistance. “Poverty has become a defining feature of America’s death penalty system. Support for capital punishment necessarily means accepting” punishment applied unequally and “that largely condemns poor and disfavored defendants . . . unable to obtain adequate legal assistance.”[19]

Fifth, the federal death penalty is expensive. The American government, and by default, American taxpayers spend a significant amount of money maintaining the federal death penalty, far more than what would be spent on inmates who were sentenced to life in prison without the possibility of parole. An inmate’s entire lifespan on death row is expensive. Since most capital punishment inmates are indigent, the public ends up paying for their legal fees. The Death Penalty Information Center notes that the capital trial process is lengthier than a normal trial: death penalty cases require more evidence to get to trial, more intense and time consuming selection of potential jurors, and the trials themselves last longer.[20] If an inmate is sentenced to death under federal law, they are housed in United States Penitentiary Terra Haute under solitary confinement, which is much more costly than non-solitary life sentence incarceration.[21] In addition, people remain on death row for a significant amount of time, and are often attempting to exhaust possible appeals. In 2020, the average time someone was on death row awaiting execution was 13.5 years.[22] The execution itself is staggeringly expensive: according to the ACLU, the cost of five of the Trump Administration’s executions amounted to $4.7 million dollars or more than $900,000 per execution.[23] By contrast, in 2022, the cost of incarcerating a federal inmate was $42,672 per year.[24]  The cost of just one execution would have housed an inmate for twenty-one years.

Sixth, as administered, the death penalty is cruel and unusual. Capital punishment by the federal government is presently carried out using a lethal injection of pentobarbital.[25] The Trump Administration has asserted that the use of pentobarbital was pain free and that the execution process was akin to “falling asleep . . . and final breaths ‘snores.’”[26] However, the Associated Press revealed that at least one inmate, Corey Johnson, who had COVID-19 when executed, experienced pulmonary edema according to his autopsy. Pulmonary edema is an experience akin to suffocation or drowning.[27] Witnesses of other executions claim that they saw prisoners’ stomachs roll, shake, and shudder.[28]

The concerns we raise are only heightened given Mr. Trump’s re-election. Mr. Trump has been and continues to be a huge proponent of the death penalty. Before seeking office, Mr. Trump took out full page ads in newspapers calling for the deaths of the “Central Park Five.”[29] While in office, Mr. Trump went on an execution spree, approving the execution of thirteen federal death row inmates in the last six months of his presidency “even as the pandemic led states to halt executions because of Covid concerns in prison.”[30] The first of these thirteen executions was the first federal execution in 17 years.[31] For 57 years prior to the first Trump Administration, only three federal executions had been carried out.[32] Mr. Trump continues to strongly support the federal death penalty and has advocated for increasing its use in his second term. As recently as October 11, 2024, he has called for using the death penalty against migrants who kill American citizens or police, and wants to expand the use of capital punishment to those convicted of non-death cases including sex trafficking and drug dealing.[33] These crimes are not currently legally authorized for capital punishment, but, given the election results, it is possible that Congress could change the law allowing the death penalty for more crimes.[34]

Finally, we respect that in recent years you have repeatedly acknowledged the failings of the United States’ death penalty after in your early career helping pass laws such as the Death Penalty for Drug Kingpin Act (1988) and the Anti-Terrorism and Effective Death Penalty Act (1992).[35] It takes a courageous person to change their position based on years of evidence. Other legislators, governors,[36] and Supreme Court Justices (such as Justices Lewis Powell, Harry Blackmun, and John Paul Stevens) also came to regret their earlier roles in the foundation of the American death penalty. The difference now is that your change-of-heart has occurred while you still have the authority and opportunity to make a difference.

We request that you follow through on your campaign promise and commute the sentences of those on the federal death row.

Respectfully,

Muhammad U. Faridi, President
New York City Bar Association

Stephen R. Greenwald, Chair
Capital Punishment Committee