Federal prosecutors are seeking the death penalty for a white supremacist who killed 10 Black people at a supermarket in Buffalo, New York in 2022. The decision marks the first time President Joe Biden's Justice Department has sought a death sentence in a new case.
In 2021, Attorney General Merrick Garland ordered a moratorium on federal executions pending a review of Trump administration policies that expedited federal executions, expanded execution methods and authorized the use of state facilities in executions. That step moved Biden's campaign promise to pass legislation to eliminate the federal death penalty to In the Works.
The Justice Department's action in the Buffalo case now raises questions about Biden's promise.
In the January court filing to seek the death penalty for the Buffalo shooter, the Justice Department wrote that "the United States believes the circumstances … are such that, in the event of a conviction, a sentence of death is justified" because the shooter intentionally killed and injured multiple people in a racially-motivated attack.
The Justice Department pointed to the moratorium in response to PolitiFact when asked whether prosecutors' decision to seek a new death penalty should be considered a policy reversal.
"The department continues to review individual capital cases to determine whether to authorize federal prosecutors to seek the death penalty in criminal matters pursuant to governing law and department policy," a spokesperson from the Justice Department told PolitiFact.
Garland has also shown continued willingness to use the death penalty in cases he inherited. In 2023, federal prosecutors successfully argued for a death sentence for the Pittsburgh synagogue shooter, who killed 11 people in 2018.
Additionally, the Justice Department under Garland has fought to uphold death sentences for current death row inmates, according to an Associated Press review of legal filings. The Justice Department told PolitiFact it has not supported any claims of bias or error brought by defense attorneys that could overturn a federal death sentence since Biden took office.
Maurice Chammah, a staff writer for The Marshall Project, a news outlet that covers criminal justice, and author of "Let the Lord Sort Them: The Rise and Fall of the Death Penalty," said that federal prosecutors' decision to seek the death penalty in the Buffalo shooter case directly contradicts Biden's campaign promise.
"If DOJ prosecutors pursue new death sentences, that to me is breaking the promise, because although you are not overseeing executions, you're still trying to sentence people to death and making it more likely that these people will actually be executed someday in the future," he said.
Ruth Friedman, director of the Federal Capital Habeas Project, an organization that provides legal services and support for death row inmates, told PolitiFact that the Justice Department's efforts to uphold existing death row sentences also runs contrary to Biden's campaign promise.
The department is "pursuing those cases aggressively, pressing the courts to uphold them even where the facts show intellectual disability or racial bias or serious mental illness, and even trying to keep proof of those problems from coming out in court," Friedman said.
Under Garland's moratorium on executions, the Justice Department has not overseen an execution since Biden's inauguration. In contrast, 13 federal executions took place during Donald Trump's presidency.
"At a statistical level … the Biden administration has sought the death penalty way less than previous presidents," Chammah said.
The moratorium remains in place as the review of several department policies continues, according to the Justice Department. Only a review of the Justice Department's manual about capital cases has been completed, with changes including the removal of provisions designed to expedite federal executions.
However, Garland's moratorium "could be easily reversible" if a new administration took a more hard-line approach to federal executions, according to Chammah. Trump has campaigned on a promise to use the death penalty for drug dealers.
"The less [Biden] does, the more it sets up a future president to carry out executions," Chammah added.
Robin Maher, the executive director of the Death Penalty Information Center — a non-profit that provides analysis about the death penalty but does not take a position on it — also told PolitiFact that a future attorney general could resume executions.
As Biden nears the end of his first term, he has several options to make good on his promise and limit the ability of a future president to restart executions.
He could call on Congress to pass legislation ending the federal death penalty, though previous bills in the House and the Senate have failed to reach votes. He could also commute the sentences of inmates on federal death row to life in prison.
Chammah said Biden could take other actions to make it difficult for a future Justice Department leader to carry out executions, such as restricting access to lethal injection drugs or dismantling the execution chamber, as Gov. Gavin Newsom did in California.
Although Garland's moratorium remains in place, the Justice Department's decision to seek a new death sentence stymies fulfillment of Biden's campaign promise to eliminate the death penalty.
Until Biden takes additional steps to eliminate the federal death penalty, we rate this promise Stalled.