President Joe Biden could not spare Marcellus Williams from being executed by the state of Missouri last month despite potentially exonerating evidence. Nor can he halt the upcoming execution of Robert Roberson in Texas, stemming from a now-debunked criminal science, because non-federal sentences like those of Williams and Roberson remain in the hands of governors.
But Biden can grant clemency to prisoners on federal death row.
Merrick Garland swiftly paused federal executions in 2021 after his appointment by Biden as U.S. attorney general. His famous prosecution of Oklahoma City bomber Timothy McVeigh led to the domestic terrorist’s execution in 2001, but current disparities led him to halt the practice. People of color make up 55% of the entirely male 40-person federal death row, and 38% are Black—as opposed to just 13% of the American population, including Taylor.
While people of color are overrepresented on death row, the race of the victim—rather than the defendant—is a more consistent determinant in death-eligible cases: 75% of executions stem from a white person’s murder, even though more Black people are murdered each year.
After the first George W. Bush term, 17 years passed without a federal execution due to lethal injection drug protocol litigation. Biden’s predecessor, Donald Trump, ended that streak, putting 13 people to death starting in his last six months in office. Six of those occurred between Trump’s election loss and Biden’s inauguration, including that of Corey Johnson, whose low IQ came into question: Executing someone with an intellectual disability violates the Constitution.
Six of the seven people of color executed in the roughly three-month span were Black, with the remaining person a member of the Navajo Nation.
Even with Garland halting executions, the next administration could easily resume capital punishment. Presidents have only commuted three death penalty sentences throughout history. Two came from President Barack Obama.
While commuting federal death row sentences remains exceedingly rare among all presidencies, Biden’s broad clemency record currently does not inspire confidence: Only 25 people have been pardoned (or granted complete forgiveness) since he took office in 2021. Another 131 sentences were commuted or reduced in length (or severity in death penalty cases).
Reforming the clemency process was proposed in the Biden-Sanders Unity Plan, an attempt to court otherwise ambivalent progressive voters. Yet Biden never followed through. Arguably, his biggest action was the simple marijuana conviction categorical pardon, which did not free a single person from prison. Meanwhile, people remain locked up for excessive drug sentences today.
The reforms by the Biden-Sanders Unity Plan proposed forming an independent board to review clemency applications, rather than channels like the Office of the Pardon Attorney, operated out of the U.S. Department of Justice, which also investigates and prosecutes all federal cases. The plan also recommended abolishing the federal death penalty.
Before he leaves office in January, there’s still time for Biden to do something meaningful for people on federal death row. While he cannot pardon the likes of Marcellus Williams and Robert Roberson, the president can influence how states approach executions through federal action.
Tandy Lau is a member of Report for America Corps who writes about public safety.