Biden said 'no' to the death penalty. Now what?

(Reuters) - It suddenly became much more difficult over the past week to figure out what the Biden administration plans to do about the death penalty, even though the president and attorney general previously had left little doubt.

President Joe Biden promised to work “to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow” that example. Attorney General Merrick Garland has questioned the death penalty on a fundamental level – at least in terms of practice, if not values or morality. And he said he expects a return to a longstanding moratorium under which the government refrained from carrying out a single execution from 2003 to July last year, during the Trump administration.

Biden’s campaign centered on criminal justice reform arguably more so than any previous American president, and he’s the first to take an openly abolitionist position on the death penalty. During his confirmation hearing, Garland cited the shockingly large numbers of people who’ve been exonerated in death penalty cases and of some Americans who’ve likely been executed for crimes they didn’t commit. He referred to enormous racial disparities in capital cases, and especially in those in which the convicted have ultimately been exonerated, points confirmed by an analysis published in February by the nonpartisan Death Penalty Information Center. Garland even said he’s concerned about the arbitrariness with which the death penalty is applied, describing it as “almost randomness.”

Nonetheless, the U.S. Justice Department urged the Supreme Court last week to reinstate the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev.

“I think there’s reason for death penalty opponents to be concerned,” said Robert Dunham, executive director of the Death Penalty Information Center. “This is not what they expected.”

So, who or what entity in the Biden administration is responsible for this vital question of justice – given the public positions it has taken? (Keep in mind that Garland, when asked if he would reinstate the federal moratorium, referred to Biden's opposition to the death penalty, and added that: "I expect that the president will be giving direction in this area, and if so, I expect it not at all unlikely that we will return to the previous policy.")

The White House back in March said Biden continues to have “grave concerns” about capital punishment, after the Supreme Court agreed to hear a case initiated by Trump’s DOJ that seeks to reinstate Tsarnaev’s death sentence.

Last Tuesday, White House spokesperson Andrew Bates reiterated to my Reuters colleagues Biden’s “deep concerns” about the use of capital punishment – after Biden’s DOJ had filed a brief in the Tsarnaev case largely in line with the Trump administration’s position.

Bates added that the DOJ “has independence regarding such decisions.”

The White House doubled down two days later, on Thursday, in response to my questions for this column: “The president believes the department should return to its prior practice, and not carry out executions,” Bates told me.

The Justice Department didn’t respond to requests for comment.

The White House's public position, in other words, is that the president has made it clear how he feels about capital punishment, and the Justice Department and Garland are independent decision-makers in their death penalty cases.

Still, there is a lack of clarity. Truly ending the federal death penalty requires an act of Congress, but there’s much the executive branch can do or simply say.

“The Biden administration hasn't clearly indicated what its policy is,” Dunham said. “A policy would be some kind of statement” about administration goals, like not pursuing the death penalty in new cases, and decertifying previously approved capital prosecutions. And, of course, the president could send a clear signal through executive action, like commuting the sentences of those currently on death row.

“But all we have are words to the effect that the president believes the death penalty runs contrary to his values,” Dunham said. “That’s a statement of belief, but it’s not a clear direction.”

So maybe the White House is sidestepping a politically divisive issue, similar to the Obama administration, as the New York Times reported in April 2015, and passing the buck to the DOJ.

“We know from what happened after the Obama administration, which did not have a formal policy but simply did nothing when it came to seeking executions, that doing nothing simply sets the table for a future president to carry on executions,” Dunham said.

At the same time, Garland and the DOJ could be doing more to fulfill the president's promise.

Biden has stressed that he wants to restore the DOJ's independence from undue political influence, which means allowing agency leadership to make their own calls in individual cases, presumably including capital cases. So what's the DOJ waiting on? (Given the context, the White House's most recent public statements that it believes DOJ should not carry out executions is essentially a directive.)

For context, consider that the DOJ has implemented a new policy independently in another area, based on Biden's public positions and without any apparent order.

In May, the agency backed off a longstanding practice and said it would stop seizing reporters’ records in leak investigations. The decision followed an apparently off-the-cuff remark Biden made during a news conference, saying the practice is "simply wrong" and that he won't let it happen, according to a New York Times report on May 24. Afterward, the White House didn’t answer questions about whether Biden had spoken to Garland to convey his statement as a policy directive, but press secretary Jen Psaki commented that “the president made those comments quite publicly, so everyone, I think, is aware.”

It would seem then that both the White House and DOJ have responsibility here, and have both made choices not to act – to the extent they can – to end the death penalty, as stated, or very strongly implied, in Garland's case.

Dunham said the administration has made other under-the-radar moves, like pulling back on death penalty arguments in at least six cases that were authorized as capital prosecutions under Trump.

Still, in other respects, a decision not to act is a decision in itself. And inaction can be costly.

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