Calls are growing for Joe Biden to use his presidential clemency powers before he leaves office to spare the lives of 40 federal death row inmates at risk of execution when Donald Trump returns to the White House.
Lawyers for many of the convicted men are appealing to the president through official clemency channels, urging him to commute their death sentences to life behind bars. Major advocacy groups and individuals affected by the death penalty are also making urgent calls for Biden to act in the 10 weeks he has left in the Oval Office.
Trump has indicated that he will authorize an execution of all prisoners sentenced to death by the US government as one of his first acts after his inauguration on January 20. The wave of judicial killings would be a continuation of the thirteen federal executions carried out at the end of Trump’s first term.
Related: ‘I’m terrified I’m going to be executed’: Trump’s victory could lead to a wave of deaths on death row
Trump’s sudden burst of executions, carried out over six months in 2020-2021, marked the most intense period of federal judicial killings under any president in more than 120 years.
“We implore President Biden to save these lives so that Trump doesn’t have the opportunity for another killing spree — because that’s what it will be,” said the Rev. Sharon Risher. She is the daughter of Ethel Lance, one of nine black worshipers shot by a white supremacist during a church Bible study class in Charleston, South Carolina, in 2015.
Risher, president of the abolitionist group Death Penalty Action, said she was well aware of the “personal feelings of wanting someone to disappear from the face of the earth.” But she has come to believe that it would be wrong to execute her mother’s killer, one of 40 people on federal death row, because “you don’t have to kill to prove anything.”
Leading civil rights organizations are also speaking out strongly. The American Civil Liberties Union (ACLU) has identified the fate of the 40 convicted men as a top priority in the coming weeks, centered on a petition calling on the president to “move the line.”
“Now is the time for Biden to cement his moral legacy by commuting all federal death sentences,” said Yasmin Cader, deputy legal director of the ACLU.
Biden’s buyout power is one of the most concrete tools he has at his disposal to secure his values before handing power to Trump. He pledged to abolish the federal death penalty during his 2020 presidential campaign but has since remained largely silent on the issue.
His attorney general, Merrick Garland, has imposed a moratorium on all federal executions in 2021.
“Commuting all death sentences would be the only thing Biden could do to effectively fulfill his stated desire to end the federal death penalty,” said Abraham Bonowitz, executive director of Death Penalty Action. “If a president commutes someone’s sentence, it cannot be reversed.”
The forty condemned prisoners are all men; the only female federal death row inmate, Lisa Montgomery, was executed in the final week of Trump’s presidency. They are being held in the Special Confinement Unit, as federal death row is known, in Terre Haute, Indiana.
In addition to the Charleston shooter, these include the 2013 Boston marathon bomber and the man who killed 11 Jewish worshipers in an anti-Semitic attack on the Tree of Life synagogue in Pittsburg in 2018.
In addition to the most notorious killers, federal death row also holds men whose cases are little known and whose presence on the unit exposes deep flaws and inequities in the system. The composition of the line is steeped in racial prejudice.
Although Black adults make up 10% of the U.S. population, they make up 38% of the 40 under federal death row inmates — and more than half of the total inmates are people of color. Some of those black men were sentenced to death by all-white juries.
Of the 13 people executed during Trump’s first term, more than half were black or Native American. Two had intellectual disabilities, which should have exempted them from death under the U.S. Constitution, and two others suffered from such severe mental illness that their lawyers argued they were not legally incompetent to be executed.
Project 2025, the manifesto for a second Trump term drafted by the right-wing Heritage Foundation, proposes that the government must “obtain finality” for every remaining inmate on federal death row. Trump has also called for expanding the ultimate punishment to drug dealers and human traffickers.
“You have to believe it when Trump says he’s going to execute all 40 people,” said Kelley Henry, a federal public defender. “He killed 13 during a global pandemic, all of whom had serious constitutional problems with their sentences.”
Henry represented Montgomery, the only woman among the thirteen executed prisoners. Montgomery, who was convicted of murdering a pregnant woman, suffered from severe mental illness as a result of a horrific history of sexual and physical abuse in his youth.
“The first Trump administration showed it was not concerned about executing people with serious mental illness, and they will do so again,” Henry said.
Henry currently represents Rejon Taylor, who was convicted of killing a white restaurant owner in 2003. He was 18 years old at the time and has always maintained that he panicked and unintentionally fired his gun.
During jury deliberations, an alternate juror revealed that some of the nearly all-white jurors called Taylor a “boy” and wanted to “send him to the chair.”
“Rejon was an 18-year-old black boy from Chattanooga, Tennessee. He was sentenced to death in a courtroom that featured a mural celebrating the antebellum South, showing an enslaved person dressed in black and white prison stripes picking cotton,” Henry said.
Lawyers for several convicted prisoners say the Office of the Pardon Attorney, the unit within the Justice Department that handles pardon requests, has so far responded to their requests. This has raised hopes that lump sum payments are on the table.
But the final decision rests solely with Biden. Whether or not he spares the lives of all, some or none of the men will depend on him alone.
When the Guardian asked whether executing the man who killed her mother would ease her pain, Risher said it would not. “Honestly, he’s going to suffer every day he’s in jail,” she said.
“Those nine angels will visit him in his cell every evening. He will relive that Bible study over and over again, and perhaps one day he will repent.”
