Reviewing CJUTF Recommendations: how might the Biden Administration seek to abolish the death penalty?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62, called the CJUTF hereinafter).  A few weeks ago, as explained here, I decided to start a series of posts to spotlight and amplify some recommendations from the CJUTF that ought to be of particular interest to sentencing fans.  In the wake of two more notable federal executions last week (noted here and here), this post will focus on a recommendation that speaks of abolition, and here it is:

Death Penalty: Abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example.

This new CNN article, headlined "Dozens of members of Congress call on Biden to end the federal death penalty," reports that a number of members of Congress (but surely not a majority) are eager to see Prez-elect Biden operationalize this recommendations:

More than three dozen members of Congress are calling on Joe Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions, according to a letter sent Tuesday to the transition team for the President-elect and Vice President-elect Kamala Harris.  While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice reform plan, 40 members of Congress and three congresspersons-elect want to make sure the practice ends on his first day in office.

"The current administration has weaponized capital punishment with callous disregard for human life. In the middle of our current public health crisis, the Department of Justice resumed federal executions and executed more people in six months than the total number executed over the previous six decades," Massachusetts Rep. Ayanna Pressley wrote in a letter first obtained by CNN.

The letter was authored by Pressley less than a week after calling for President Donald Trump to stop pending federal executions that are scheduled to take place during his lame duck period.  She specifically joined celebrities, bipartisan politicians and anti-death penalty advocates' call to stop Brandon Bernard's execution as his trial had allegations of prosecutorial misconduct that only surfaced two years ago.

Pressley, a Democrat, introduced legislation on July 25, 2019 -- the same day Attorney General William Barr announced federal executions, which had been stalled since 2003, would resume -- to rid the federal level of the practice and require resentencing for those currently on death row.  The bill has not had any action in the House since August 2019....

"With a stroke of your pen, you can stop all federal executions, prohibit United States Attorneys from seeking the death penalty, dismantle death row at FCC Terre Haute, and call for the resentencing of people who are currently sentenced to death," wrote Pressley.  "Each of these elements are critical to help prevent greater harm and further loss of life."

Executive Director of the Fair and Just Prosecution Miriam Krinsky told CNN after a meeting with the Justice Department's transition team earlier this month that stopping federal executions "doesn't really require congressional action."...

To date, there are 52 people on federal death row and 18 pending state executions, according to the Death Row Information Center.

This CNN piece rightly suggests that Prez-elect Joe Biden could clear out the federal death row on January 20, 2021, by commuting the death sentences (presumably to life without parole) of all persons still on federal death row on his first afternoon in office.  Because there are three pending federal execution scheduled for January that seem likely to go forward, there may only be 49 persons left on federal death row by January 20.  But that number will include, inter alia, mass killers like the Boston Marathon bomber and the Charleston Church shooter.

Of course, commuting all of federal death row, and even instructing his Justice Department not to seek any new death sentences, does not fulfill a commitment to "abolish the death penalty at the federal level."  Doing that will take legislation passed by Congress, and that would seem to be a long-shot in the near-term.  Prez-elect Biden likely could try to include death penalty abolition in a bigger bill about many criminal justice reforms, but doing so would likely generate extra opposition because most Republicans (and still many modern Democrats) strongly  support the death penalty in extreme cases.  I doubt Prez-elect Biden will be eager to use his political capital on this issue in the early days of his presidency, and I wonder if he will want to focus on this issue at all.

Perhaps even more interesting is to imagine how a Biden Administration might seek to "incentivize states to follow the federal government’s example."  Will a Prez Biden really try to encourage states to abolish the death penalty if he does not himself work actively to do so at the federal level?  More generally, would a Prez Biden really seek to condition or restrict funding to states — which is the most obvious way to "incentivize" them — based on whether they abolish the death penalty?  He might need help from Congress to tie federal funding to state capital punishment practices, and I am disinclined to expect Congress to be keen on such a project.

That all said, I sense that death penalty abolition is a high-profile and high-priority concern for many progressive activists and policy-makers.  As such, this issue is one worth watching closely as an indication of how much energy and political capital a Biden Administration may be willing to spend on controversial matters to appease the left flank of his party.

Prior related posts:

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 
• Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
• Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations 
• Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President 
• Reviewing CJUTF Recommendations: will the Biden Administration go all in with progressive prosecutors?

UPDATE: Over at Crime & Consequences, Kent Scheidegger highlights in this post that a high-profile federal case presents a high-profile opportunity for the incoming Biden Administration to show a commitment to capital abolition.  Kent's post is titled "The Marathon Bomber, the Death Penalty, and the Biden Administration," and it ends this way:

Are you really opposed to the death penalty in all cases, Mr. President-elect?  If so, this is the case to take the action. This is the case that poses the question in its starkest terms.  Don’t chicken out and announce it in some borderline case on the ragged edge of deserving the death penalty.  Man up and announce it in the case that screams for it.  Direct the Solicitor General to stipulate to the dismissal of the certiorari petition, and announce to the nation that you will not seek a new death sentence for Tsarnaev on remand.

Let’s see what kind of reaction you get.