As a lame-duck president, Joe Biden faces some tough choices on criminal justice, including whether or not to fulfill his earlier campaign promise to commute the sentences of the forty people on federal death row and respond to various demands from Democratic lawmakers, like granting clemency to those whom progressives believe are serving unduly harsh sentences. These are all urgent concerns, especially those related to capital punishment; President-elect Trump has promised to resume executions as part of his broader tough-on-crime agenda. Biden’s hesitancy to act thus far is likely pragmatic. Following the rationale that led the Democratic Party to drop opposition to the death penalty from their 2024 platform and abandon the justice-reform enthusiasm of 2020, Biden probably thinks that bold action would further alienate the party from middle America. One might wonder if past energy on criminal-justice reform will dissipate as Democrats work to further rein in their party’s progressive excesses in the aftermath of 2024’s electoral failure.
However, this doesn’t have to be the case. Biden should swiftly commute all forty death-row sentences and do all he can to tackle the problems of mass incarceration in his final days in office. To take but one example, he could commute the mandatory minimum sentences for the thousands of people incarcerated for federal drug crimes whose sentences were not affected by 2018’s First Step Act. But he should do all this in a way that signals a new, daring moment for the re-setting of Democratic politics, particularly those related to criminal justice. He can use this moment to shift the rhetoric around punishment, in an appealingly bipartisan way, calling for a bold focus on the protection of human dignity over and against the power and claims of the state.
This argument should be made by Biden, and picked up by the next generation of Democrats on the state and local levels, in two ways (both of which will be challenging for many in the party). First, they should directly connect these commutations and broader justice-reform work to clear moral and religious claims regarding the value and worth of all human beings. For example, Biden might use commutations as an opportunity to connect Democratic politics to Catholic teaching, with its respect for the sanctity of human life (including on matters of capital punishment).
Democrats need to become more comfortable with framing their work less in the narrow terms of the system’s procedural problems and inequalities (their go-to reference points) and more in terms of deeper claims of human dignity and the possibility of redemption. The reason to get rid of capital punishment, according to this thinking, is not fundamentally because we might execute someone who is innocent, or because it costs ridiculous amounts of money, or because disparities exist in our justice system, or because the drugs injected into people cause pain (though all of this is true). We should get rid of capital punishment because every human life has inherent value. The refrain of lawyer and activist Bryan Stevenson should become the mantra of all Democratic criminal justice–reform efforts moving forward: “Each of us is more than the worst thing we’ve ever done.”
This does not entail a free-for-all, of course; for one, no person on death row necessarily needs to be released from prison if Biden commutes his sentence. A focus on human dignity also means we must talk about crime, the harms done to victims and communities, and the possibilities of restoration of all parties (not just those who have committed crimes). But public safety is not served through retributive killing or needlessly harsh sentences for crimes, which waste not only government resources but also the lives of people who matter to God.
Second, Biden should talk about the frailty of the government and its failure to execute justice fairly. Most Americans simply do not trust the government to do what is right, and Biden needs to appeal, in those terms, to skeptics who might otherwise disagree with his commutation. In making these arguments, Biden can offer Democrats a parting gift amidst an otherwise sad season: a break with the past through a reformation of their agenda, not in terms of narrow parsing of focus-group sensitivities (though polling shows support for the death penalty at a five-decade low), technocratic identity politics, or equivocal outreach to moderate Republicans, but in terms of faith, dignity, and the courage to do what is right, even when it is hard.
Biden can offer Democrats a break with the past through a reformation of their agenda, reframing it in terms of faith, dignity, and the courage to do what is right, even when it is hard.
On that note, Biden might ask leaders like Bernie Sanders and Alexandria Ocasio-Cortez (who has called on Biden to commute federal death sentences) to join him at the press conference announcing such actions. Their brand of economic progressivism has turned out to be all the more compelling after November’s elections precisely because it names in morally urgent terms the problems of American poverty and the wealth gap. But he should also invite Ron McAndrew, a Trump-voting, pro-life former prison warden who opposes resumption of the federal death penalty. McAndrew, like most Americans (including many conservatives), knows that something is wrong with the way our justice system works; these skeptical conservatives are hungry for bold action to try something new.
The temptation will be for Biden to issue commutations under the cover of night, or by framing his actions as a direct (perhaps insulting) rebuke to Trump. He should avoid both of these approaches. He needs to own this, directly addressing the American people about his actions, and doing so on his own terms. He should also talk about these actions with reference to his change of heart on the matter of a pardon of his son Hunter, who broke the law (and deserved to be held accountable) but who also endured a prosecution that was politically driven, unfair, and far harsher than any ordinary citizen would normally face.
Most important, he should lead the way in giving Democrats a way to talk about their vision apart from Trump. Focusing on Trump’s foibles is a losing issue electorally, and it also prevents Democrats from having to make a constructive argument about the goods and ends of our common life. Indeed, this might even be a moment for Democrats to reclaim a mode of politics that that celebrates bipartisan work and accomplishments (the First Step Act was a bipartisan achievement, after all, signed and repeatedly hailed by none other than Trump himself).
This might even be a moment for Democrats to reclaim a mode of politics that that celebrates bipartisan work and accomplishments.
With these approaches in mind, what might a constructive vision of Democratic criminal-justice politics look like beyond 2024? For one, it will avoid the Democrats’ ridiculous posturing, ubiquitous throughout the 2024 campaign, as the party of the “tough prosecutor,” with Trump and his cronies as “felons.” This is not to say that electing leaders who will uphold the law isn’t important, nor is it to say that corruption doesn’t matter (though Democrats have plenty of their own problems on that front). It is instead to point out that framing like this is ultimately ineffective, because it doesn’t actually confront deeper matters of truth and justice, and doesn’t keep in mind that the prosecutorial powers of the state (and labels like “felon”) haven’t actually been helpful or fair for many Americans.
Republicans like to remind Democrats that we worship God, not the government. This is the kind of straw-man sloganeering at which progressives roll their eyes. But, of course, they are right, and, in his final days in office, Biden can lead with this mantra in mind. It’s precisely the animating ethos that inspiring political movements for justice have had in the past, and one they need to recover right now: all people have God-given dignity, and the state is but one limited tool that helps us honor this reality in our common life together. Biden’s last-minute commutations and clemencies can save and improve lives, which is the most important thing. That is why he must act now and not kick the issue down the road for future party leaders to address. But, in taking bold action and in naming in urgent terms what really matters, Biden can also crack open a new door for the next generation of Democrats to run through.