President Biden is leading a country in which support for the polarising death penalty is waning. The US has a problem with who it executes and how, and Biden's plans for reform are highly anticipated. Vicki Prais explores the death penalty and its future.

Donald Trump and his team left the White House with a bang, not a whimper. Whilst political commentators and analysts will unpick Trump's administration for years to come, the new incumbent, Joe Biden, brings fresh hope and optimism to a country riven by civil strife.  The unedifying scenes at Capitol Hill in early January were deeply troubling; Biden has a difficult job to heal the nation.  

And one of his biggest challenges will be to address some of the endemic problems sewn deep into the nation's broken criminal justice system: mass incarceration, systemic racism, police misconduct and chronic underfunding. Biden made bold promises in The Biden Plan for Strengthening America's Commitment to Justice in which he anchored his policies in principles of equality, equity and justice.  His strategy calls for deep-seated reform including abolishing private prisons, bail and police reform, additional funding for drug courts and the elimination of mandatory minimum sentences for non-violent crimes, to name a few.  

But perhaps the thorniest issue for the new administration is the hugely polarising death penalty.  In stark contrast to Trump's avowed support of the death penalty – he presided over more executions than the last 10 presidents combined and broke with a 130 year old tradition of refraining from executions during the "lame-duck" transition period –  Biden plans to abolish it at the federal level as part of his criminal justice strategy. 

The federal death penalty has a chequered history in US politics and was declared unconstitutional  by the U.S. Supreme Court in 1972 as it was found to constitute "cruel and unusual punishment"; it was subsequently reinstated by that same court in 1988. The federal government resumed executions in July 2020, which ended a 17-year moratorium on the federal death penalty and can be imposed in any state including those that do not have the death penalty. Some 55 people currently sit on federal death row. The list of death-eligible crimes include espionage, treason, various instances of murder. Those currently sitting on federal death row have been sentenced to death for murder of varying degrees and are held in special confinement at Terre Haute in Indiana.   

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Some thirteen people were federally executed under the Trump administration (five in the run up to the inauguration) including Lisa Montgomery, the first woman to face federal execution in the US since 1953. Dustin Higgs was the last person to be executed under Trump's watch on 16th January 2021.  The imposition of these death sentences is not without controversy. ProPublica has exposed worrying irregularities in the conduct of these executions including the procurement of execution drugs from a secret pharmacy that failed quality tests and the payment of private executioners in cash.  

In July 2020, Wesley Ira Purkey was executed despite a pending competency appeal. Purkey was denied his full day in court. Indeed, international human rights standards including the UN Safeguards guaranteeing the protection of the rights of those facing the death penalty, states quite clearly that 'capital punishment shall not be carried out pending any appeal…'  If the Rule of Law is to mean anything, it surely must include respect for due process particularly where a life is at stake.

Whilst the federal death penalty is used less frequently than in states, it is no less immune to the inequities and vagaries that plague the state system.  The federal death penalty, like its state counterpart, is applied disproportionately against people of colour and the poor. The system is similarly ravaged by problems of prosecutorial misconduct and allegations of ineffective assistance of counsel.  

The mood music is certainly changing in the U.S. in terms of support for the death penalty as more states move towards abolition.  There are currently 22 non-death penalty states.  In May 2019, New Hampshire abolished the death penalty and there are legislative moves afoot in Wyoming, Montana and Kentucky.  And the public are coming on side as well:  a November 2019 Gallup found that public support for the death penalty is the lowest in a half-century.  43% of respondents were opposed to the death penalty as a punishment for murder.  There may be various reasons for this shift. Life-without-parole sentences are now a viable alternative in capital cases.  In addition, an increase in exonerations in capital cases due to DNA and sophisticated forensic evidence raises serious concerns about the safety of convictions.  

President Biden finds himself at an inflection point in terms of the federal death penalty.  He is certainly under pressure from various quarters, including Congress, to make good on his promise.  In early December 2020, he was lobbied by 40 Congressmen to abolish the practice of federal executions. In the same month, a group of nearly 100 criminal justice officials including elected prosecutors, former attorneys and former police chiefs made the same call. Moreover, in early January 2021, Democratic legislators on the Hill introduced three bills to abolish the federal death penalty. In a letter to President Biden, they called the death penalty "unjust, racist and defective."  

The pressure upon him is palpable. 

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