Biden’s Failed Death Penalty Legacy in Alabama

Many pundits, scholars, journalists, lawyers, and activists have commented recently about President Biden’s legacy, particularly when it comes to the death penalty. This is only natural and to be expected in light of Biden’s recent, historic decision to commute the sentences of 37 of the 40 men on federal death row to life without parole (but leaving undisturbed the death sentences of Boston Marathon bomber Dzhokhar Tsarnev, Tree of Life synagogue shooter Robert Bowers, and, the Charleston, South Carolina, church shooter Dylann Roof, in addition to not ending, as he could have—and still can up until January 20 when Trump assumes command—all pending federal death penalty prosecutions, including military ones).

As a frequent critic of Biden on this issue over the years—of his administration’s lies and its objective failures to fulfill Biden’s campaign promise to end the federal death penalty and incentivize states to abandon the practice, too—I debated not saying anything, at least in print, about why Biden’s capital commutations can’t repair his legacy as a president who failed to effectively use the power of his office to advance death penalty abolition.

Because even a hardcore cynic like me can concede that Biden’s capital commutations—even if they took way too long to issue, even incomplete and not as robust a rebuke of state-killings as they could have been—will ultimately be adjudged a great positive step toward death penalty abolition.

Nevertheless, because I’ve developed a particular niche of sorts in writing specifically about the death penalty in Alabama—where condemned men are regularly treated like hogs fit for slaughter, dispatched by gruesome and gasping nitrogen-gassing torture sessions, or, via slicing and sticking, often bumbling and “botched” lethal injections—it behooves me to speak up to fill the colossal void and what I humbly suggest is an unacceptable silence when it comes to public opinionating on how Biden’s last-minute commutations are resonating in the heart of Dixie.

My task, unfortunately, as a death penalty abolitionist writer—who would like to see the death penalty ended in the United States—is easy: Biden’s last-minute, late-in-the-day commutations haven’t and won’t “incentivize” people in states like Alabama, Texas, Florida, or any of the other pro-death penalty outliers, to end the death penalty where they live and to end it soon. Quite the contrary actually. These pro-Trump bastions are likely to feed off the President-elect’s own stated outrage at Biden’s capital commutations, and are likely only to ramp up state executions.

One indicator of this is Alabama Attorney General Steve Marshall. 5 days before Christmas, Alabama news outlet al.com published an article titled: “Steve Marshall is proud Alabama leads nation in executions: ‘This has been a team effort.’” So, for example, don’t wait for AG Marshall to make any public statements commending Biden’s capital commutations, or, for him to say that he was so moved by what Biden did on the federal level he’s feeling incentivized to hold a rally with Alabama’s most famous, still-living death penalty abolitionist, attorney Bryan Stevenson—founder of Alabama’s Equal Justice Initiative—a rally where Marshall’s going to announce he’s now a death penalty opponent. It’s not gonna happen.

And it was never going to happen. And I’m not here claiming that there was anything Biden could have done during his presidency that would have changed AG Steve Marshall, Governor Kay Ivey, or any other pro-death penalty Republican’s mind when it comes to capital punishment.

What I’m arguing is that a president’s statements and actions carry a certain power—whether you approve of them or not—they have an authority attached to them, one that can’t be ignored.

If, in the early days of his presidency, Biden had immediately commuted all federal death sentences and put an end to all federal death penalty prosecutions, there’s no telling how wide the ripple effect of that momentous decision would have reached over the balance of his time in office. Surely other leaders in other states—both in the U.S. and the world over—would have had to clarify, maybe even re-evaluate their own state’s stance on capital punishment as a result.

It’s not that some of these conversations and re-evaluations won’t still happen now with so little time left in Biden’s term in office. They will. But any movement in the direction of death penalty abolition they generate will be immediately blunted by Trump’s wielding, just as he did before, of the death penalty as a political cudgel to show how tough on crime—and how tough generally—he is. Death penalty cheerleaders like Steve Marshall will only echo this—and worse—because they will point to Biden’s federal commutations as ones that smack purely of politics—ones not based on principle.

Because if Biden’s federal death row commutations had been based on principle—the principle that killing people, even people who kill other people, is wrong—they would have been made right away when Biden took office, and they would have been done across the board, without any clearly calculated exceptions.

Instead, by Biden having waited so long to do what he promised when he ran for president as it concerns the federally condemned—and to not do it fully and unconditionally—Biden’s capital commutations seem more like a distasteful political payoff he was forced to make before departing office—not ones that were motivated by a civilized, humanitarianistic belief-system.

Imagine if, in 2024, when Alabama began torturing its condemned with nitrogen gas, Biden came to the state—and during or after each of the three executions where men were palpably tortured by gassing—he gave press conferences touting his noble efforts to end the death penalty (and why gas-torturing people to death is the wrong direction for our country to be headed in)? But he never did that. Because he couldn’t. And now it’s too late, and wouldn’t be believed anyway.