The first federal executions during a president’s lame-duck period in over a century have turned attention to how President-elect Joe Biden’s administration will handle the death penalty.
The high-profile case of Brandon Bernard — one of five gang members convicted in the murders of two youth ministers in 1999 — sparked national interest over the past few months, as celebrities and politicians railed against his pending execution as part of a larger push to eradicate the death penalty. On Thursday, the Supreme Court denied a petition filed by Bernard’s attorneys Alan Dershowitz and Ken Starr, and he was put to death later that evening.
President Trump has supported Attorney General William Barr in pushing through federal executions before the end of his term, breaking a 130-year tradition of pausing the practice during presidential transitions. Bernard’s death further enraged activists, who have grown increasingly frustrated with the Trump administration’s use of the death penalty.
Yet those activists might find reason for optimism in the incoming White House, as both Biden and Vice President-elect Kamala Harris support ending the practice.
The current Biden-Harris criminal justice plan calls for the eradication of the death penalty at the federal level and offers incentives to states that follow suit. The plan also suggests that those sentenced to death should serve life sentences without probation or parole.
The Biden-Harris transition has yet to make a statement on Bernard’s execution.
Biden’s position on the issue has fluctuated throughout his career, and critics often point to his support while serving as a U.S. senator of the 1994 crime bill, which greatly expanded the criteria for when the federal death penalty could be imposed.
“Let me define the liberal wing of the Democratic Party. The liberal wing of the Democratic Party is now for 60 new death penalties,” Biden said on the floor of the Senate at the time. “The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the Democratic Party is for 125,000 new state prison cells.”
Biden continued to support the death penalty in 2000, but has gradually changed his stance over the years. During the 2020 presidential primary, he told a crowd in New Hampshire, “Congratulations to y’all ending the death penalty here.”
Harris has been opposed to the death penalty for years. Her controversial decision not to seek the death penalty while serving as district attorney of San Francisco outraged the police unions and Sen. Dianne Feinstein alike.
Yet that decision did not protect her from criticism during her recent run for the presidency. During an August 2019 Democratic primary debate, Rep. Tulsi Gabbard accused Harris of withholding evidence that would have “freed an innocent man from death row.”
Harris rebuked the accusation.
“My entire career I have been opposed — personally opposed — to the death penalty,” she said. “And that has never changed.”
It’s unclear what impact the attorney general — the government official who would have a pivotal role in orchestrating these federal sentences — would have on the administration, since Biden has yet to announce his nominee. And the incoming White House will also face pressure from its own party to put a stop to federal executions.
Any attempt at rolling back, rather than pausing, executions could face major challenges if Republicans maintain their Senate majority following the Georgia runoff races scheduled for next month.
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