2020 was not a typical year in many ways, and it was definitely not a typical year for capital punishment in the United States. Last year marked the first time in the history of the United States when the federal government carried out more civilian executions than all of the states of the Union combined. Conversely, the long-term national trends away from capital punishment coupled with the ongoing global pandemic has brought the number of state executions to a 37-year low.

Newly-elected US President Joe Biden is the country’s first abolitionist president, and he promised voters that he would seek to end the death penalty at both a federal and state level.

FEDERAL DEATH PENALTY 

The federal government under President Trump’s administration resumed executions in July 2020 after a 17-year hiatus. The hiatus was caused in part by the increasing difficulty of obtaining drugs for lethal injections and various instances that produced controversy and chaos. There were 13 executions scheduled during the height of the pandemic, and two prisoners were ill with COVID-19 when they were executed. The total number of executions under President Trump marked the most consecutive civilian executions by any state or US government in the 244-year history of the United States since the federal government executed 16 civilian prisoners in 1896. As the Supreme Court Justice Sonia Sotomayor noted in her dissent in United States v. Dustin John Higgs, “to put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades”. This historically aberrant six-month federal execution spree came to close at midnight on 16 January 2021, Dr. Martin Luther King Jr.’s birthday. John Higgs, an African-American man, was put to death for a crime someone else confessed to committing.   

The Trump administration raced to implement these executions while failing to take necessary action to protect individuals during the pandemic—particularly the 14 people on federal death row who become ill with the virus. The execution spree also highlighted continuing trouble spots in the US’ implementation of the death penalty. Many of the recent cases that resulted in executions have deviated from modern American norms and practises. The executions have featured systemic flaws, including ineffective representation, denial of DNA testing, curtailed legal process, opposition by victims’ families, and claims of innocence.

THE DEATH PENALTY ON DECLINE

Momentum against the use of the death penalty has grown in recent years as a number of states recognised that it is an expensive, ineffective, and error-prone practise too flawed to fix. Last year, seven executions were carried out by the states, fewer than in any prior year since the Supreme Court struck down US death penalty laws in 1972. Overall, 34 states, more than two-thirds of the nation, have either abolished the death penalty or not performed an execution in at least a decade. Most recently, Virginia became the 23rd US state to abolish the death penalty, and Louisiana and Utah joined the list of twelve death-penalty states that have not carried out an execution for more than a decade. It was earlier this year that Virginia’s state lawmakers gave final approval to legislation to end capital punishment. This is “a dramatic turnaround for a state that has executed more people in its long history than any other,” executing nearly 1,400 people since its days as a colony. Such a development gives hope that it sets an example for other states from the old Confederacy to take this bold step toward a humane reform of America’s legal justice system. 

PUSH FOR CHANGE

US President Biden pledged in his campaign “to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the government’s example”. However, the president, who played a central role as a senator in the passage of a 1994 crime bill that greatly expanded the number of federal crimes for which someone can be put to death, offered no specifics. Biden, to his credit, is the first president in US history to openly campaign on abolishing the death penalty. Now that he is in the White House, the pressure is mounting from civil rights activists and lawmakers for him to fulfil that promise.

 In February 2021, 82 organisations, led by the Leadership Conference on Civil and Human Rights wrote a letter calling on Biden to fulfil his pledge to end the death penalty. In the letter, activists reminded the president that he campaigned “on a platform cantered on strengthening America’s commitment to justice, based on the core beliefs that we must eliminate racial, income-based, and other disparities, and create a criminal legal system focused not on cruelty and punishment, but on redemption and rehabilitation”. The signing organisations called for an immediate commutation of the sentences of all individuals under federal sentence of death and for reinstating the moratorium on the use of the death penalty.

Similarly, on 11 March 2021, UN-appointed independent rights experts called on President Biden to do everything in his power to end death row executions in the United States. In their appeal to the White House, the experts insisted that the death penalty served “no deterrent value and cannot be reconciled with the right to life” and called on Biden to grant clemency to 48 people currently on the federal death row. The experts declared this should only be the first step and further urged the president, as well as members of Congress, to “strongly support legislative efforts to formally abolish the death penalty at a federal level”. They argued that the president “should consider all other possible federal-level actions including directing the Department of Justice to stop seeking the death penalty and withdrawing notices of intent to seek the death penalty in ongoing cases”. 

While total abolition of the death penalty would require an act of Congress, there are immediate steps that President Biden can take to roll back the inhumane practice. President Biden can use his executive powers, which do not require congressional approval, to make a moratorium official. This would bring the federal government into line with the winds of change blowing across America, through which the death penalty is steadily declining.

Anna is focused on becoming a Barrister specialising in Public Law and to this end will be part of the second intake for the BTC at the ICCA in Jan. 2021. She holds a first class honours Bachelor of Laws degree from Middlesex University, and honours Master of Laws in US and Global Legal Studies degree with certificate in Public Law from Case Western Reserve University in Ohio, United States of America. Anna is dedicated to pursuing a legal career focused on promoting democracy, human rights and justice for all, ensuring that elected leaders, as well as all citizens, comply with and are afforded the protections guaranteed by the rule of law.

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