Trump’s Executions, Biden’s Commutations, and Federalism

Abstract During his first term, President Donald Trump executed thirteen federal prisoners. At the end of his own presidency, Joe Biden commuted the death sentences of thirty-seven federal inmates, reducing them to life in prison without the possibility of parole. Most commentators have focused on how Trump’s action reflects his support for the death penalty and Biden’s shows his opposition to it. But the better question to ask is what the contrast says about the federal death penalty in particular. This article argues that the Biden commutations (and in particular the nature of the three death sentences that were left untouched) reflect a coherent conception of the federal death penalty as being limited to terrorism and civil rights murders, rare cases in which there is a compelling national stake in an execution. By contrast, the Trump executions represent a model in which the U.S. government uses the death penalty so indiscriminately that it becomes divorced from the federalist foundations of the criminal justice system. This juxtaposition has fruitful implications for the broader ongoing debate about the federal government’s role in punishing crime as compared to the states.