President Biden’s Justice Department Holds Hard Line in Death Row Cases

Opponents of the death penalty expected President Biden to act within weeks of taking office to fulfill his 2020 campaign promise and end federal capital punishment while working at ending it in states that still conduct executions. However, the president has not taken steps toward fulfilling his promise.

Instead, Biden’s Justice Department continues to fight vigorously in courts to maintain the sentences of death row inmates after Attorney General Merrick Garland instated a temporary pause on executions. Attorneys for some of the 40-plus death row inmates say they’ve seen very little meaningful change to the Justice Department’s approach under Trump and Biden.

“They’re fighting back as much as they ever have,” said the head of the defender unit that oversees federal death row cases, Ruth Friedman. “If you say my client has an intellectual disability, the government … says, ‘No, he does not.’ If you say ‘I’d like (new evidence),’ they say, ‘You aren’t entitled to it.’”

When Garland announced the 2021 moratorium, he noted concerns about how capital punishment disproportionately impacts individuals of color and the “arbitrariness” in its application. The attorney general hasn’t authorized any new death penalty cases and reversed decisions by previous administrations to seek in 27 cases.

A Justice Department spokesperson said prosecutors “have an obligation to enforce the laws, including by defending lawfully obtained jury verdicts on appeal.” The DOJ is working to ensure “fair and even-handed administration of the law in capital-eligible cases.”

Seven federal defendants face possible death sentences

The first federal death penalty case tried under President Biden concluded this month. Former President Trump decided to seek the death penalty, and AG Garland allowed the case to move forward. The jury was divided on the fate of Sayfullo Saipov, who murdered eight people in a terrorist attack on a New York bike path, is spared the death penalty.

Although the criteria for allowing some capital cases to proceed isn’t clear, the department frequently consults victims’ families. Attorneys for inmates have asked for all capital cases to get a new look, and Garland appears to be moving in that direction.

This year, the department reinstated written guidance emphasizing that staff can proactively fix grievous errors in capital cases, although none have invoked that opportunity. The attorney general also re-set processes in which defendants, in specific circumstances, asked the department to consent to their bids for relief.

As the 2024 election looms, death row inmates know time is of the essence. The newly-elected president may be less sympathetic to their claims.