Rolling Stone‘s Naomi Lachance inadvertently reinforces my argument from yesterday in her report “Biden Clears Out Most of Federal Death Row Before Trump Can Kill Them.”
President Joe Biden is commuting the sentences of the majority of people on federal death row, the White House announced on Monday, in anticipation of Donald Trump — a champion of capital punishment — taking office. The inmates have now been sentenced to life in prison.
Criminal justice advocates have been pushing Biden to take action on this issue after he pledged to end the federal death penalty during his presidential campaign — especially with Team Trump preparing another execution spree.
[…]
The federal government executed 13 prisoners at the end of Trump’s first term, the first since 2003 during George W. Bush’s presidency. Trump and his team have been eagerly planning to go on another “killing spree” on federal death row once they take power, a Trump adviser recently told Rolling Stone. As we have reported, Trump has expressed interest in reinstating banned methods of capital punishment, and has suggested group executions and televising executions.
“These are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country,” Trump said in 2022 when he announced his intention to run for president. “We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts,” he added.
So, again, as a matter of public policy I laud Biden’s action here. Indeed, he struck the sweet spot in terms of my preferences on the death penalty, reserving it for the most egregious offenders whose guilt is beyond any shadow of a doubt.
My problem is the timing. Despite indicating his opposition to the death penalty in his 2020 campaign (although I must confess I don’t recall him emphasizing it), he didn’t commute these sentences when he still had skin in the game, subject to punishment from the voters. He could have done it any point in his four-year term but waited not only until after the election but after his running mate lost her bid to succeed him.
In the comments of yesterday’s post, the pushback was threefold. First, Biden was elected to a four-year term and retains the full powers of the office until the second his successor is sworn in. Second, it’s a good thing for politicians to do the right thing, and sometimes this requires being free from the pressures of democracy. Third, and somewhat related, is that Donald Trump is a uniquely horrible politician and that doing things to thwart him is an unalloyed good.
Regarding the first, I fully agree. I’m not arguing that Biden’s actions are illegal, merely that it’s problematic from a democratic standpoint.
Regarding the second, I disagree strongly. It’s true that policies that I agree with—including this one!—have gotten enacted under lame-duck Congresses and presidencies. But it’s also true that policies—including other pardons and commutations—that I found outrageous got enacted under them. My argument is about process and legitimacy, not my preferred outcomes.
Regarding the third, well, see the second. I voted against Trump three times. I got my preference once. Them’s the breaks in a democracy.*
The most vociferous advocate for the second argument was @MarkedMan, who repeatedly took a Burkean tack. Most notably, “I think that an elected official should do what is right, and I don’t see the problem with them waiting to do that until they are not standing for election, if they know it might result in the loss of the election.”
I agree on the first part but vehemently disagree with the second. It’s fine, arguably even admirable, for a politician to act in the way he thinks is morally right and/or in the long-term interests of his constituents, even if he thinks they’ll be angry about it. But waiting until they’re no longer accountable to do so is cowardly and, yes, undemocratic.
Some apply the “lame duck” label to a President the minute they begin their second term or, in rare cases like Biden’s, announce that they will not be running for a second term. But Presidents in those circumstances still have plenty of incentive to consider the wishes of the voters, as they want to get policies through Congress and be succeeded by someone from their party. My critique applies specifically to the period between the election—particularly one that resulted in a change of party control—and the assumption of power of the newly-elected President/Congress.
My co-blogger Steven Taylor, who agrees on me here on both policy grounds (that the commutations are morally just) and on process grounds (that they’re problematic in terms of democratic accountability), does believe that I overemphasize the fact that Biden effectively lost the election.**
I do so for two reasons. First, I think it further delegitimates questionable actions, especially those that seem clearly designed to take powers away from his opposite-party successor. Second, had Harris won, Biden would presumably be somewhat constrained by the impact any of these actions would have on her popularity/ability to govern. Having lost, he’s completely free to say “screw you” to the voters. Even as one who voted for both Biden and Harris, that doesn’t sit right with me.
Lachance reinforces the first of these. The fact that these commutations specifically make it impossible for Trump to carry out a campaign promise is, frankly, outrageous. While I don’t think either the 2020 or the 2024 elections materially hinged on the execution of convicted Federal prisoners, that fact of the matter is that there was every indication that Trump would have carried out the sentences. The loser of the election, no longer accountable to the voters, sent a giant middle finger to the country on his way out the door.
*I’m well aware of the undemocratic nature of the Electoral college, the Senate, and other aspects of our polity. While that might have provided some fodder regarding his first administration, they really don’t apply to this one, since he won outright.
**Obviously, Kamala Harris was on the ballot, not Biden. But she was there because he quit the race after the primaries, effectively handing her the nomination as a fait accompli. She was very much a stand-in for the Biden-Harris Administration.
