Joe Biden has a moral, ethical responsibility to clear the federal death row

The Biden administration must do all it can to unwind the federal death penalty. Also: News on Texas's death penalty. And, for paid subscribers: Closing my tabs.

President Joe Biden has less than 64 days left in office.

Across the federal government, there are efforts to protect people, programs, policies, and priorities against efforts by Donald Trump and the new administration to fire, end, halt, and reverse them.

In many of those areas, a coordinated, smart incoming presidential administration could do much to accomplish those aims. That does not describe the incoming administration, but they certainly will be able to accomplish significant changes — and will do so. It is “elections have consequences” in practice. And yet, there are several areas where the outgoing administration can take action that cannot be reversed.

One of those areas is executions.

Biden can — and must — take the step advocates and some lawmakers have been asking him to take for nearly four years: Clear the federal death row.

Biden must use his pardon power to commute the death sentences of those on federal death row to sentences of life in prison without the possibility of parole. Do it.

Along with that, Attorney General Merrick Garland should conclude his ordered review of the federal death penalty policies and procedures, withdraw the federal execution protocol, and order the immediate dismantling of the death chamber at the federal prison in Terre Haute, Indiana. This would be similar to action taken by California Gov. Gavin Newsom five years ago when he came into office. Garland has two months. Do it.

Capital punishment need play no role in a modern criminal justice system. It is unnecessary, flawed, and expensive. Biden, if he is honest with himself, knows that governmental executions are immoral. They are murder. If he looks at the data, he also should know that allowing executions in our system is unethical.

Beyond all of that, given Trump’s first four years as president, Biden knows that this is no hypothetical. In his first term, Trump oversaw 13 executions — the most of any president since Franklin Delano Roosevelt. Since the modern federal death penalty statute was signed into law in 1988, only George W. Bush and Trump have overseen executions.

There are 40 people currently on the federal death row, however, according to the Death Penalty Information Center. Trump, of course, has made it clear that he would like to see more people subject to death sentences and executed, although much of that would require legislative changes.

A new Trump administration certainly will try to carry out executions, and Biden must consider that and accept that he would be, indirectly, allowing for that possibility if he does not act.

Given all of that, Biden and the Biden administration have a moral, ethical responsibility to do all that they can do in the next two months to make that more difficult.

This is not, moreover, some far-left political position.

Just this week, Gallup announced its findings of continued decreased support for the death penalty — including a finding that support is below 50% among both millennials and Gen Z. And though support has decreased less in older age groups, it has decreased in all age groups.

It not just the younger generations. In addition to some Republicans who oppose the death penalty across the board, there are many Republicans who have opposed certain executions — an acknowledgement that they believe the system does, in fact, lead to significant questions about whether people are being put on death row who should not be there.

President Biden will have many important decisions to make over the next two months. He cannot ignore this one. Not deciding will be a decision.

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On the Robert Roberson-related ruling

On Friday, the Texas Supreme Court issued a unanimous decision that will have the end result of not allowing a state legislative committee to stop another scheduled execution from being carried out by issuing a subpoena for the testimony of the condemned person.

The House Committee on Criminal Jurisprudence had, in effect, accomplished that goal temporarily in September, when the Texas Supreme Court blocked state officials from carrying out the scheduled execution of Robert Roberson while it considered the question of the committee’s authority to do so.

Roberson, who has maintained his innocence, remains on death row despite a trial that rested on a since-discredited “shaken baby syndrome” finding. The committee subpoenaed Roberson to testify after none of the formal steps in the state’s death penalty system worked to stop the execution. They then went to court to have the subpoena enforced.

Friday’s decision frees Texas officials to set a new execution date for Roberson.

The opinion resolving the question about the committee’s authority, authored by Justice Evan Young, was, in most aspects, a defensible discussion of separation-of-powers questions raised by the circumstances.

It was a narrow decision, holding that “the Texas Constitution’s separation-of-powers provision and our general separation-of-powers jurisprudence do not permit judicial enforcement of a legislative subpoena that would require canceling a long-scheduled execution.“

It is a worthwhile read. Although perhaps giving a little too much weight to the claimed interest of a state ever to need to carry out an execution at a specific time, most of the remainder of the opinion properly examines the complications raised by such committee subpoenas. Young summarized the implications of allowing such a subpoena to stop an execution as such: “[B]y interfering with a legal process ordained by the legislature itself, a committee’s action, if capable of blocking an execution, could in fact impair the prerogatives of all three branches.”

While the court’s conclusion led to headlines that Texas Supreme Court was allowing the execution to proceed, and that’s not an unfair statement of the result, four other aspects of the decision — two in the opinion and two externally — should be noted.

First, Young made it clear that this was not the court washing its hands of these issues — or ending any possibility of relief. “We are confident, for example, that the executive branch will not deny reasonable access to inmates if a legislative committee genuinely wishes to hear from them at a time that would not require that branch to disregard a judicial warrant,” Young wrote. He also noted that the decision did not “completely foreclose the possibility that this Court could order an execution to be halted under appropriate circumstances.“

Second, the court pushed back — strongly — against the Texas executive branch. The Texas Department of Criminal Justice argued to the court that it lacked jurisdiction to hear the case at all, in part because, in Texas courts, the Texas Court of Criminal Appeals has jurisdiction over criminal appeals. Explaining that this simply wasn’t a criminal matter — it was, instead, a civil matter about enforcing the committee’s subpoena and the separation-of-powers questions that raised — Young noted: “An order granting the committee’s petition would be neither an exercise of habeas jurisdiction nor an exercise of jurisdiction over a criminal-law matter.“

Third, this is a reminder that the lawmakers themselves can act — proposing legislative changes to a system that several lawmakers, of both parties, clearly believed was not operating properly here.

Finally, Robert Roberson is alive today. This effort was, ultimately, a success — for the moment. Because of their efforts, his legal team has more time to work — to find other legal angles for his case and to seek other possibilities for reprieve, including from the Texas Board of Pardons and Paroles and Gov. Greg Abbott. Although that’s not the goal, it is a success. Roberson, literally, lives to fight another day.

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Closing my tabs

[This section was originally available only to paid subscribers.]

This Sunday, here are the tabs I’m closing:

• We had known, due to earlier rulings, that the U.S. Court of Appeals for the Seventh Circuit was likely to keep Indiana’s ban on gender-affirming medical care for minors enforceable. In a 2-1 ruling issued on Nov. 13, Judge Michael Brennan (Trump) was joined by Judge Kenneth Ripple (Reagan) in holding that Indiana’s ban is likely constitutional. Although the ruling doesn’t change enforcement of the Indiana law, it does come as the U.S. Supreme Court is scheduled to hear arguments in a similar case out of Tennessee on December 4. A notable aspect of the Seventh Circuit ruling was that Brennan also tossed aside the challenge to the state’s ban on a medical provider “aiding or abetting another physician or practitioner” in providing such care. “Simply because speech is picked up during enforcement of a law does not mean the law targets speech,“ Brennan wrote of the First Amendment challenge. Judge Candace Jackson-Akiwumi (Biden) dissented. Noting, “I disagree on all fronts,” Jackson-Akiwumi focused her dissent on the First Amendment question.

• Ohio’s lawmakers passed an extreme anti-transgender bathroom ban — addressing all schools, including colleges — this past week that will be heading to Ohio Gov. Mike DeWine’s desk. Erin Reed covered its passage:

Ohio Passes Sweeping College Trans Bathroom Ban, First In Nation After Election

• There will be many stories — and even more work — on confronting Trump 2.0, including here at Law Dork. Here’s a look from The New York Times at several aspects of what the Times calls Democrats’ new “battle plan” for addressing Trump.

• To that end, Daniel Nichanian provided a comprehensive update at Bolts on where state supreme courts stand: “The outcome of dozens of supreme court races last week set the stage for how critical legal battles from abortion rights to gerrymandering could play out in state courts across the country.“ A must-read report — particularly given the federal government come January.