Biden uses his pardon power to save 37 from execution

The original purpose of pardons was mercy, not corruption

On Monday, the White House announced that President Joe Biden is commuting the death sentences of 37 of the 40 federal inmates sitting on death row.

This, in my view, is a proper use of the pardon power. Bravo to Biden.

What does the Constitution say about the death penalty?

In 1972, in Furman v. Georgia, the Supreme Court declared the death penalty unconstitutional under the Eighth (cruel and unusual punishment) and Fourteenth (due process and equal protection) Amendments to the U.S. Constitution. Four years later, in Gregg v. Georgia, the Court reversed course and found that the death penalty “comports with the basic concept of human dignity at the core of the [Eighth] Amendment.”

No federal executions took place from the 1970's through 1990's or throughout the 2010’s. Three people were executed in the 2000’s, including Timothy McVeigh, who was executed by lethal injection at USP Terre Haute, IN on June 11th, 2001 for masterminding the Oklahoma City bombing. Thirteen people were executed during Donald Trump’s first presidency.

Through his Attorney General Merrick Garland, Biden declared a moratorium on federal executions and a review of the federal government’s policies and procedures.

---

If you enjoy this newsletter, please share it widely—and consider upgrading to paid. Thank you!

---

Why did Biden commute these death sentences?

The President said in a statement:

“These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.”

“Make no mistake: I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss.”

“But guided by my conscience and my experience as a public defender, chairman of the Senate Judiciary Committee, Vice President, and now President, I am more convinced than ever that we must stop the use of the death penalty at the federal level.”

“In good conscience, I cannot stand back and let a new administration resume executions that I halted.”

What are the statistics on innocent people in jail or on death row?

We know for a fact that the United States executes innocent people.

Think about that.

Is that okay? Really?

Shouldn’t there be a way for the government to figure out how not to use its massive power to kill innocent people? It’s 2024, after all. The technology that we have to do all sorts of things is mind-blowing.

Since 1973, 200 people on death row have been exonerated based on evidence of innocence.

Since 1989, the University of Michigan’s extensive and publicly accessible database, which is known as National Registry of Exonerations (NRE) has tracked over 3,348 exonerations, representing in over 29,971 years lost to incarceration, not counting pardons for political favor or amnesty (the longest time an exoneree was incarcerated was forty-seven years, two months).

As of 2021, nearly half of all exonerations involved wrongful convictions and hundreds of those involved police misconduct.

Statistics on exonerations more generally show a deeply disturbing racial disparity: 58% Black to 38% white.

The death penalty is also more costly to taxpayers than life in prison.

How can the Constitution tolerate so many wrongful convictions?

This is the amazing thing: The Supreme Court has made it very difficult to challenge criminal convictions due to exonerating evidence on the theory that the President can always pardon people.

In a case called Herrera v. Collins, the Supreme Court in 1993 essentially concluded that the pardon power exists to fill in gaps that the writ of habeas corpus (which is a way to challenge wrongful detention through a civil lawsuit) leaves unaddressed. The case involved Leonel Torres Herrera, who was convicted of murder and sentenced to death in January 1982. He appealed his conviction and lost. He also filed a habeas petition in federal court and lost that, too.

Then, ten years after his conviction, Herrera filed a second federal habeas petition arguing that he was actually innocent of the murder. He cited the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s Due Process Clause, claiming that they forbid the execution of an innocent man. As proof, he submitted sworn statements from an eyewitness to the crime and a number of witnesses who said that Herrera’s brother, now dead, confessed to the murder. Writing for the Supreme Court, the late Chief Justice William Rehnquist flatly stated that Herrera “urges us to hold that this showing of innocence entitles him to relief in this federal habeas petition. We hold that it does not.”

The Court did not assess the veracity of the affidavits or decide that, as a matter of fact, Herrera did commit the murder and thus was not actually innocent—despite acknowledging that “the central purpose of any system of criminal justice is to convict the guilty and free the innocent.” Instead, Rehnquist wrote that “[c]laims of actually innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” In other words, being innocent is not enough to evade the death chamber. Herrera had to show that his constitutional rights were somehow also violated by the process. “Once a defendant has been afforded a fair trial and convicted of the offense for which he is charged,” Rehnquist wrote, “the presumption of innocence disappears.” The government proved its case beyond a reasonable doubt. If it turns out that it didn’t have the facts right, so long as the government presented its case in a manner consistent with the Constitution, Herrera is out of luck. The death sentence stands.

The Court acknowledged Herrera’s argument that “this case is different because he has been sentenced to death.” But the fact that he could be executed for a crime he did not commit makes no difference as a matter of federal habeas law, it concluded. The answer instead, Rehnquist wrote, is that “under Texas law, petitioner may file a request for executive clemency,” which is “rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” He went on to proclaim that “Executive clemency has provided the ‘fail safe’ in our criminal justice system,” despite the “unalterable fact that our judicial system, like the human beings that administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.”

I talk about all of this in my book.

What should presidents think about when they contemplate pardons and commutations?

I talk about this in my book, too, and list a number of factors for consideration.

One thing is for sure: self-dealing, obstruction of justice, witness tampering, bribes—none of these are good reasons for a pardon.

Bottom line?

In my view, Biden got this one right.

Follow the facts,

KW

---

Simple Politics with Kim Wehle is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

Subscribed

---

Check out my latest book, Pardon Power: How the Pardon System Works—and Why.

---

Click the link below to access my Linktree, with links to all my articles, books, etc. And check out my #SimplePolitics YouTube channel, my Instagram, and my Twitter!

---