Presidents, Prosecutors and Policies
Last week, President Biden commuted the death sentences of 37 of the 40 people on federal death row. This was motivated by an opposition to the death penalty and to prevent Trump from executing them.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the Eastern District of Missouri, a man was indicted for communicating racially motivated hate speech to the St. Louis NAACP. The speech threatened to harm those who received the message.
In the District of New Jersey, the former Chief Science Officer for a biopharmaceutical company was arrested in Switzerland after his indictment for insider trading. The person traded company stock based on inside information that the company’s emergency application for a COVID vaccine would not be granted.
In the District of Utah, a man was sentenced for evading over $750,000 worth of taxes and for making false statements relating to the ownership of his house when the IRS attempted to collect the debt.
Presidents and Death Penalty Policy
Last week, President Joe Biden commuted the death sentences for 37 of the 40 people on federal death row. In doing so, he expressed his opposition to the death penalty except in cases of hate crimes and terrorism. This was a policy choice. Many disagreed with it, including the President-elect. Biden’s commutation brought renewed attention to one of the toughest questions in the realm of prosecutorial independence. To what extent does the President have input into criminal prosecutions? This is a multifaceted problem and the President’s power to pardon people and commute sentences adds a layer of complexity to it.
Policy approaches to the death penalty differ. Obviously no one feels the death sentence should be imposed in every criminal case and most supporters believe it should be limited to only murder cases. Some might say every convicted murder case should receive a death sentences. Others might limit it to cases that present certain factors. Most states that permit the death penalty require that the jury make certain findings before imposing the death penalty. These findings include the presence of certain aggravating factors. President Biden’s approach would limit the death penalty to cases involving hate crimes and terrorism. Of course, on the other end of the policy debate are those to believe the death penalty should not be used under any circumstances.
When President Biden announced the commutations, death penalty opponents lauded the act while many who support the death penalty voiced their opposition to the act. Generally, Democrats oppose the death penalty and Republicans support its use. Echoing this trend, President-elect Trump criticized the action and promised to use the death penalty as President.
The partisan policy divide also appears in the cases of those who had their death sentences commuted. There were 37 defendants who had their sentences commuted. They constituted 29 cases as eight cases had two defendants. In terms of defendants, 20 had been sentenced under a Republican president and 17 had been sentenced under a Democrat president. In terms of cases, 17 were sentenced under Republican presidents and 12 were sentenced under Democrats.
A more stark contrast appears in executions. Since the federal death penalty was restored in 1976, there have been 16 executions. The first was Timothy McVeigh, who was responsible for the 1995 Oklahoma City bombing of the Murrah Federal Building. That was carried out in 2001 under President George W. Bush. In 2003, President Bush authorized two more executions. The remaining 13 occurred in the last six months of Donald Trump’s first terms in office. One of those cases was for a series of drug-related killings that took place in 1993. Notably, two other defendants in the case were among those who had their death sentences commuted by President Biden.
This data shows that the person in the presidency matters when it comes to death penalty policy. Should it? Should Presidents have the power to make a difference in criminal cases?
The top-level answer is yes. The Constitution explicitly gives the President the power to pardon people and grant reprieves for federal criminal offenses. The only limit to the power is that presidents cannot pardon impeachments. This means presidents can intervene in any criminal case and prevent the prosecution of prospective criminal cases. We shall this recently when President Biden pardoned his son not only for the crimes for which he was charged and convicted but for any possible offense during the specified time period.
The question becomes more complicated when we consider motivations for intervening. In the best case scenario, the President intervenes to prevent a miscarriage of justice or because the case presents a question of such importance that the President must decide. These arise rarely. Instead, Presidents intervene when they have a personal or political interest in the case. It could arise when the President seeks to prosecute a political rival. It could arise when the President seeks to shield a family member. Yet it could also occur when the President has a policy preference.
In a sense, presidential policy preferences also influence criminal cases. Assuming President-Elect Trump advances the policy agenda he espoused during the campaign, the number of immigration related criminal cases will increase during his term. There will also be an increase in the number of violent offenses compared to the Biden Administration. While these are political decisions, they are also policy decisions and are part of the reason why presidents are elected. They should intervene in these cases.
Against this backdrop, what does President Biden’s commutation tell us about Presidents and prosecutors? First, Presidents will almost always act in their political self-interest. When they don’t, they act in their personal self-interest. In terms of prosecution, the first is more palatable than the second. Second, a President's political interests and personal ideology hopefully align. President Biden acted on both his personal ideology—when the death penalty should be used—and his political interest—preventing Donald Trump from executing people Biden believed were undeserving. In terms of prosecution, this is where Presidents should influence prosecution. Finally, in theory, the system worked as it should. Presidents establish priorities and instruct the prosecutors to act on those priorities. The prosecutors perform their function unimpeded by the President. Then, when necessary, the President intervenes only when needed to emphasize a policy choice or implement a policy.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!