The title of this post is the title of this new article authored by Jonah Horwitz which is now available on SSRN (and is forthcoming in the Federal Sentencing Reporter). Here is its abstract:
During his first term, President Trump executed thirteen federal prisoners. At the end of his own presidency, Joe Biden commuted the death sentences of thirty-seven federal inmates and reduced them to life in prison without the possibility of parole. Most commentators have focused on how President Trump’s action reflects his support for the death penalty and President 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.
I argue 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 governments’ role in punishing crime as compared to the states.