Don't just pardon turkeys — use Thanksgiving to spare lives on death row

Today, President Biden will preside over this nation’s annual Thanksgiving tradition and pardon two turkeys. Since the middle of the 19th century, presidents have been marking the holiday by performing this ritual act of mercy. Abraham Lincoln was the first to do so.

In our era, this ritual takes place in the White House’s Rose Garden, where the president is, as Swedish anthropologist Magnus Fiskesj puts it, the “high priest of the pardon.” Pardoning a turkey might seem frivolous in a world with many serious problems and with many incarcerated individuals all over the nation seeking clemency. But it is a very public occasion that highlights the vast power of the president and other chief executives to extend mercy and grace to others.

The key example of that power, Fiskesj suggests, is found in “decisions on wielding or withholding the executioner’s axe.”

As we approach the Thanksgiving holiday, a lot of ink has already been — and will continue to be — spilled urging Biden to do more than pardon a turkey and commute the sentences of everyone on federal death row. And on Nov. 20, 60 members of Congress joined in that call.

Biden should indeed do so, although that act would save only 40 lives.

As important as it is that Biden turns his opposition to capital punishment into concrete action, such action is even more important at the state level, where some governors also will be pardoning turkeys this Thanksgiving. That is because, in death penalty states, there are now more than 2,200 people awaiting execution.

It is time for Democratic governors in those states to use their sovereign power to put down the executioner’s axe. They can build on a long tradition of governors who have issued mass clemencies and emptied their states’ death rows.

Today, three of the states with large numbersawaiting execution — California, Pennsylvania and North Carolina — have Democratic governors. The clemency process is different in each of them.

California, as attorneys David Carrillo and Brandon Stracener explain, “gives the governor the sole authority to commute death sentences for those capital inmates with only one felony conviction. But four justices of the California Supreme Court must concur in commutation if a person has been twice convicted of a felony.”

“The Los Angeles Times,” they say, “estimates that more than half of the inmates on death row have two or more felonies. The upshot: the governor can commute about half by himself and the other half with assent.”

California Gov. Gavin Newsom (D) has already imposed a moratorium on the death penalty in his state. He has also withdrawn “California’s lethal injection protocols” and closed “the execution chamber at San Quentin State Prison.”

At the time he took these actions, Newsom said, “The intentional killing of another person is wrong, and as Governor, I will not oversee the execution of any individual. Our death penalty system has been, by all measures, a failure. It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. Most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”

Still, district attorneys in the state “continue to seek death sentences, and, each year, California juries send another handful of people to Death Row.” Today, there are more than 630 people who already have been sentenced to death in the state.

Newsom should act now, to ensure that no subsequent governor can execute any of them. He is likely to find allies among the six of seven liberal majority on the state Supreme Court.

On the other side of the country, Pennsylvania has 109 people on death row, making it the seventh-largest in the country. But the governor’s clemency power there is more circumscribed than it is in California. The governor is “authorized to grant clemency only upon a favorable recommendation by the Board of Pardons.”

Like Newsom, Pennsylvania Gov. Josh Shapiro (D) opposes the death penalty, a change from when he was first elected as Pennsylvania Attorney General in 2016. Last year, he said that he would not sign any death warrants, and he called on the state legislature to abolish capital punishment. “The commonwealth,” Shapiro observed, “should not be in the business of putting people to death.” He continued, “When my son asked me why it was okay to kill someone as a punishment for killing someone, I couldn’t look him in the eye and explain why.” 

That is why the governor should ask the Board of Pardons to review the cases of everyone on Pennsylvania’s death row and urge them to let him grant clemency to all of them.

Finally, there is North Carolina, where the Gov. Roy Cooper (D) will soon leave office after serving two terms. Unlike Newsom and Shapiro, he doesn’t have to worry about the immediate political consequences of emptying his state’s death row.

Moreover, his power to do so is greater than that of those governors. The North Carolina Constitution says that “The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses (except in cases of impeachment), upon such conditions as he may think proper, subject to regulations prescribed by law relative to the manner of applying for pardons.”

This means that Cooper can, on his own, commute the sentences of the 138 people on his state’s death row. To do so, he must buck a recent trend in the Tar Heel state. The Death Penalty Information Center reports that since 1977, only “three North Carolina governors have granted clemency to five death-sentenced individuals.” And, as journalist Keyln Lyons explains, “While North Carolina governors frequently granted clemency in the late 1970s until 2000, commutations became rare starting in 2001.”

A large coalition of anti-death penalty and religious groups have called on Cooper to grant a mass commutation. Among other things, they cite the pattern of racial discrimination that has afflicted North Carolina’s death penalty system.

That pattern is reflected in the fact that “just over 22 percent of residents are Black, but over half of those on death row are Black or African American. ...  Of the dozen people who have been sentenced to death in North Carolina and later found innocent, 11 are people of color.”

So far, Cooper has not said what he will do.

Let’s hope that Govs. Newsom, Shapiro and Cooper see the wisdom of using their clemency power to allow people on their states’ death rows to know the blessings that Thanksgiving and this great nation can afford.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.