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A few legal musings about the prospect of Prez Biden commuting all federal capital sentences

By Douglas Berman

Articles published last week from the New York Times and the Washtington Post discussed campaigns urging Prez Joe Biden to commute the capital sentences of all convicted murderers on federal death row.  Now the Wall Street Journal has this new “exclusive” report, headlined “Biden Weighs Commuting Sentences of Death Row Inmates,” which gets started this way:

President Biden is considering commuting the sentences of most, if not all, of the 40 men on the federal government’s death row, people familiar with the matter said, a move that would frustrate President-elect Donald Trump’s ability to resume the rapid pace of executions that marked his first term….

A decision from the president could come by Christmas, some of the people said.  A principal question is whether the president should issue a blanket commutation of all the condemned men, or whether death sentences should remain for the most heinous convicts, these people said. 

According to the WSJ, “Attorney General Merrick Garland … has recommended that Biden commute all but a handful of the sentences, … excepting a few terrorism and hate-crimes cases.”  Also notable, as reported in this Vatican News story, is broader advocacy from the Pope:

Pope Francis and US President Joe Biden spoke with each other in a phone call overnight on 19 December….  The two leaders discussed “efforts to advance peace around the world during the holiday season,” according to a White House statement….  The President “also graciously accepted His Holiness Pope Francis’s invitation to visit the Vatican next month.”  In a subsequent statement, the White House press secretary noted Biden will be in Rome from 9-12 January [and that] the audience with the Pope is scheduled for 10 January….

One of the issues that is particularly close to the Pope’s heart is the fate of prisoners on death row…. The Pope has described the death penalty as an act “at odds with Christian faith” and one that “eliminates all hope for forgiveness and rehabilitation.”  During the Angelus on the Feast of the Immaculate Conception on 8 December, the Holy Father called on the faithful to “pray for the prisoners who are on death row in the United States.”…  “Let us pray,” he said, “that their sentence be commuted, changed.  Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death.”  

I have been expecting Prez Biden to commute at least a few capital sentences on his way out of the Oval Office.  Prez Obama commuted two death sentences during his last week in office, and capital clemency has a rich modern history at the state level.  But these press reports have me thinking blanket or near-blanket commutation for all of federal death row is a real possibility and perhaps real soon (though maybe not until just before or just after Prez Biden meets with the Pope).  Though I will leave it to others to discuss the morality and the politics of blanket federal capital commutations, I wanted to muse here about a few legal matters:

1.  Because there are some pending federal capital prosecutions, including 9/11 terrorists at GTMO and the racist mass shooter who murdered 10 in Buffalo (and perhaps also even the recent murder of the UnitedHealthcare CEO), an effort to preclude all possible future executions might need to include murderers beyond those already sentenced to death.  There are ways to write up a broad clemency order that would apply to all pending cases, and it will be interesting to see if anti-capital commutations extend to pending cases as well as past ones.

2.  Because broad federal capital commutations will surely be controversial, I wonder if any states could or would try to secure death sentences for murderers spared by Prez Biden.  For example, I believe Pennsylvania held state capital charges in abeyance while DOJ sought and secured a federal capital sentence for the Tree of Life Synagogue mass murderer.  Were this mass murderer to escape a federal capital sentence, perhaps state capital charges would begin again.  Practically, I suspect there are only a very few cases in which a state could pursue their own capital charges (and a number of federal capital defendants committed murders in states without the death penalty).  

3.  Because broad federal capital commutations will surely be controversial, I wonder if the future Trump Department of Justice might explore the possibility of capital reprosecutions.  That might sound peculiar, but the Biden Department of Justice pursued unresolved fraud charges against Philip Esformes after his prison sentence had been commuted by Prez Trump.  Many folks expressed concern about what seemed like an end-run around a presidential clemency grant; I had the honor of testifying at a congressional hearing on the topic, and I’ve been deeply concerned about a new norm of future administrations looking for ways to undo some past clemency grants.  Practically, I suspect reprosecution efforts unlikely, especially if Prez Biden leaves some murderers on federal death row, but I am still grumpy the Biden DOJ created a precedent for doing so.

4.  Because federal capital commutations will be, presumably, to a term of imprisonment of life, it could be possible for the recipients to seek a future reduction of their prison sentence thanks to a key provision of the First Step Act signed into law by Prez Trump.  Specifically, 18 U.S.C. § 3582(c) now provides authority for a judge to “reduce the term of imprisonment” on a defendant’s motion when certain (fairly stringent) conditions are met.  Though I can imagine viable arguments that murderers serving LWOP-commuted-death sentences are categorically ineligible for so-called “compassionate release,” I still would expect some (many?) of those who get death sentences commuted to, at some point, try to also get their imprisonment term reduced.