AUTHOR’S NOTE: On Dec. 23, Joe Biden commuted the sentences for 37 of the 40 people on federal death row including Rejon Taylor. Dylann Roof, who killed nine parishioners at a Black church in South Carolina, is one of three people who did not receive clemency. This story was originally published under the headline “Biden’s executive clemency record is ‘anemic’ in age of capital punishment.” Read more here.
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 on Oct. 17, 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 the likes of Rejon Taylor, who is on federal death row in Terre Haute, Ind., for the 2003 murder of restaurateur Guy Luck. Taylor’s attorney, Kelley Henry, chief of the Federal Public Defender Capital Habeas Unit in Nashville, Tenn., says she applied for clemency on Taylor’s behalf. That is a routine practice for a capital defense lawyer dealing with a chief executive in their final term, but she believes there is nothing routine about her client.
“Rejon is in the most restrictive environment that you can imagine, and yet has flourished—it is amazing,” said Henry over the phone. “I give him so much credit for having to raise himself in prison, because he is in solitary confinement on federal death row, and the deprivation is as awful as you can imagine. Yet he has been able to maintain a clear disciplinary record, which is extraordinary…he has such compassion for every person who was on federal death row.
“He ministered to all of the men who were executed because, as a result of his conduct, he is allowed to be [an] orderly. He was the only one that the men who were being executed would have any access to.”
Henry said that as an orderly, Taylor lends an ear to his death row peers facing execution in their last minutes and handles post-mortem affairs such as delivering messages and personal effects to their friends and families. He also developed into a prolific artist, writer, and poet, donating his works to galleries with proceeds going toward the venues and for causes like the Innocence Project.
Unlike Williams, Taylor does not claim actual innocence. He “is not a guy, who in any way, wants to justify what happened,” said Henry. However, clemency is based on grace and mercy, not exoneration. In fact, those on death row aren’t returned to the community after their sentences are commuted and instead serve out a life sentence without parole even when the defendant may be innocent.
Federal death penalty under Biden and his predecessors
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 can easily resume capital punishment. And Trump, of course, is on the ballot again. Clemency becomes even more pressing for those sitting on federal death row if 45 becomes 47 this November, given his track record.
Presidents have only commuted three death penalty sentences throughout history. Two came from Obama.
“This administration has not executed anyone, and has sought fewer death sentences at trial, but this Justice Department is still fighting relief in every single case on the row, including in cases of race discrimination or where the prisoner is intellectually disabled, and thus ushering them all closer to execution,” said Ruth Friedman, director of the Federal Capital Habeas Project, via email.
What distinguishes a state and federal capital offense can be quite arbitrary, given the stakes. High-profile killers like McVeigh or mass shooter Dylann Roof often dominate public attention for federal death row cases, but lesser known defendants like Taylor go through the same system.
“Historically, those crimes for which the federal government could seek a death sentence were limited to crimes that were specifically narrow in scope and and were related to a strong federal interest…like a terrorism offense,” said Robin Maher, executive director of the Death Penalty Information Center. “But the expansion of the federal death penalty greatly expanded the number of federal crimes for which a death sentence was possible.
“It included a number of crimes that were drug crimes that would ordinarily have been charged locally, but were raised to the federal level as drug-trafficking crimes. And they also saw, sort of disturbingly, that those offenses were generally used against people of color in the late ’90s.”
Carjacking can elevate a local murder charge into a federal prosecution, as in Taylor’s case—not because of the crime’s severity or brutality, but because vehicles are assembled from parts across the country and murders violating interstate commerce fall under federal jurisdiction. Killing someone on federal property means federal prosecution, even if state land is just a few feet away.
Biden’s ‘anemic’ clemency record
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).
According to Rachel Barkow, an NYU law professor, both numbers are particularly disheartening, given Biden’s criminal justice reform promises after progressive criticism of his track record as a “tough-on-crime” Democratic senator who pushed anti-drug legislation in the 1980s and ’90s.
“It’s been disappointing to see that he really hasn’t done much to show that he’s got a different framework, because he does have this power where he could quite literally fix some of the very same sentences that were caused by the legislation he supported by giving commutations, because people wouldn’t get those sentences today in many cases,” said Barkow over the phone. “But he just hasn’t exercised the power.”
Reforming the clemency process was also proposed in the Biden-Sanders Unity Plan, another attempt to court otherwise ambivalent progressive voters. Yet Biden never followed through, according to Barkow. 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.
“With Biden, there’s a certain amount of difficulty engaging [with] what he’s done, because he’s done a couple of broad mass clemencies that don’t deeply affect a lot of people,” said Mark Osler, professor of law at the University of St. Thomas-Minnesota. “If we pay attention to what’s the core federal clemency, which is people who filed a petition, followed the rules, got letters of support, and submitted it to the pardon attorney, he’s been really anemic in his response to that.”
Osler, a former prosecutor, added that specifically, directly granting clemency “has the ability to be truly life-changing for people” and broad actions like Biden’s simple marijuana pardon proclamation “just doesn’t have that transformative effect.”
Don’t compare Biden and Trump’s clemency records
While Trump pardoned roughly 100 more people than Biden, Barkow said the two should not be compared. The ex-president’s numbers “definitely exaggerate the kind of the good he did with his clemency power,” she said, despite the highly publicized commutation (and later pardon) of Alice Johnson, a Black woman then serving a life sentence for a first-time, nonviolent drug offense.
Barkow pointed to Trump’s pardons and commutations for war criminals and personal allies as padding to his clemency record.
Instead, other Democratic presidents, like Obama and Bill Clinton, provide clearer benchmarks. Over his eight years in office, Obama pardoned 212 people and commuted 1,715 sentences. Clinton pardoned 396 people and commuted 61 sentences in his two terms.
“If you looked at President Obama’s clemency record, he was very much focused on racial disparities and people that got long sentences, and that is not what you would see in the Trump grants,” said Barkow. “There have been so few by Biden that it’s hard to say what he’s focused on. It’s just so minimal as to not really be a pattern.”
That is not to say every clemency order by a Democrat is welcomed by criminal justice reform advocates. Clinton’s pardon of white-collar fugitive Marc Rich particularly drew public outrage, including from another former Democratic president and recent centenarian: Jimmy Carter.
Due to political impact, Barkow does not expect any substantial pardons or commutations until after the election. Across the board, presidents exercise their clemency authorities most when leaving office.
With Biden dropping out of reelection, Vice President Kamala Harris is saying little about clemency in her presidential campaign. And for good reason.
“Even when someone is a deserving recipient, no voter really votes for somebody because they granted clemency,” said Barkow. “That’s just not the way our politics work. The reason for clemency is never really a political one.”
Applying for presidential clemency
Osler said the long road to clemency usually starts from the individual putting together a petition. It first goes to an assistant in the U.S. Office of the Pardon Attorney, for consultation with the original prosecutors for an opinion. After gathering further information, the assistant will make a recommendation.
“The pardon attorney is going to have it in hand and is going to decide what [they think] the recommendation should be,” said Osler. “After that, it goes to the Office of the Deputy Attorney General, first to a staffer and then the Deputy Attorney General. After that, it goes over to the White House Counsel—first the staffer reviews it—and then the White House Counsel reviews it. At some point over there, the Domestic Policy Council gets involved and is looking at [the petition], too.
“And so after all that, it goes to the president.”
All these individuals bring “different filters of what they’re looking for and what they care about” when combing over a clemency application, Osler said—enough filters and “eventually nothing gets through.”
Nothing in the Code of Federal Regulations technically binds presidents to such a process—and as a result, Trump often skirted around the red tape without recourse.
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.
The Office of the Pardon Attorney and the Biden administration did not respond to requests for comment.
Into the future
Henry said that while there’s a lot of red tape, that red tape is “designed to have fairness,” and she believes Biden and Garland will be fair. Getting their attention is the challenge.
“I feel like President Biden has had a lot on his plate, so I don’t get tangled up in rates of commutations,” said Henry. “This is something that I will do, and have done—I’ve been practicing for 34 years. When an executive leaves office, you request clemency, because you hope that you hope and pray that they will exercise clemency. That was the hope for President Obama, and I believe he only granted two death penalty commutations, and they were pretty easy ones to grant.
“I don’t know what President Biden will do, and I have stopped predicting what any executive will do. I just pray that he reads Rejon’s petition and is moved by it.”
Maher said there’s still time for Biden to do something meaningful for people on federal death row before he leaves office next January. While he cannot pardon the likes of Marcellus Williams, Emmanuel Littlejohn, or Robert Roberson, the president can influence how states approach executions through federal action.
“What we’re seeing is a real disconnect between what elected officials are doing in the state and what the American public wants them to do with respect to use of the death penalty,” she said. “We’ve seen concerns about fairness and racism in the death penalty increase and elected officials are still blindly scheduling executions without regard to these very serious concerns about use of the death penalty.
“Should the federal government do something meaningful regarding federal use of the death penalty, I think that would send a strong signal to the state, and perhaps serve as a model for the kind of reform that the American public is looking for.”
Tandy Lau is a Report for America corps member who writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.
Author’s Note: A previous version contained transcription errors referring to “today” in Barkow’s quote as “to go” and “pardon attorney” in Osler’s quote as “partner treaty.”