Why new Attorney General Pam Bondi is going all in on the federal death penalty

Elections have consequences, so the slogan goes. One of those consequences was on full display Feb. 5, in the minutes after Pam Bondi was sworn in as attorney general in the Oval Office. Bondi is moving quickly to reverse Biden administration policies, and right at the top of her list is the federal death penalty, which Biden opposed.

The Biden Justice Department imposed a moratorium on executions and pursued few death sentences. In the waning days of his presidency, former President Joe Biden himself commuted the sentences of 37 of the 40 people on federal death row in Terre Haute, Ind. Bondi has now made clear that she regards each commutation as “shameful” and that she is determined to revive the federal death penalty.

None of this is surprising. But the attorney general’s display of unbridled enthusiasm for capital punishment on day one of her tenure — and her inattention to the death penalty’s serious problems — should give all Americans reason to ask whether the death penalty that we have makes us a safer, saner and more just nation.

Nothing in Bondi’s orders suggests that she has a plan to address those problems. That’s too bad — people on all sides of the capital punishment debate can agree that, if it is to be used at all, the death penalty should be applied fairly and evenhandedly and in a way that comports with our commitments to due process and equal protection of the law.

Reading her Feb. 5 directives, one might get the impression that the attorney general was more interested in attacking the Biden administration than in fixing the federal death penalty.

As Florida’s AG, Bondi had already shown her staunch support for capital punishment. She was an early supporter of the state’s Timely Justice Act, for one, which required the governor to “sign a death warrant within 30 days of the conclusion of clemency review and schedule an execution within 180 days of the issuance of the warrant.”

Indeed, there was almost no wrinkle in the Florida death penalty system on which Bondi did not line up with death penalty supporters, from the question of whether juries had to be unanimous in recommending a death sentence to the state’s use of the controversial drug midazolam in its lethal injection protocol. In 2013, she said, "As a prosecutor, there was nothing more important than seeing justice done, especially when it came to the unconscionable act of murder. I personally put two people on death row and, as attorney general, have already participated in eight executions since I took office.”

Bondi made those comments after a flap over the depth of her commitment to capital punishment. It occurred when it came to light that she had asked Florida Gov. Rick Scott to delay an execution so she could attend a campaign fundraiser.

Critics had a field day. As one of them put it, "Wherever one stands on the death penalty, there isn't anyone in America that believes an execution should be postponed for political fundraising. That Pam Bondi requested a delay in this execution shows … her moral compass is broken."

Bondi apologized and acknowledged, "I should not have requested the execution be moved. … It will not happen again.” Since then, she has been scrupulous about showing her death penalty bona fides.

That comes through clearly in her Feb. 5 directives changing the Department of Justice’s death penalty policies. She denounced Biden’s Justice Department for failing to seek death sentences against “child rapists, mass murderers, (and) terrorists,” and went on to call Biden’s decision to commute federal death sentences “appalling.” She claimed those actions “severely undermined the rule of law and grievously damaged the public's trust in the justice system.”

“For the victims of these horrific crimes and the loved ones left behind,” she continued, “these actions betrayed our sacred duty and broke our promise to achieve justice.” To realize that promise, Bondi said the Justice Department would faithfully implement President Trump’s executive order titled “Restoring the Death Penalty and Protecting Public Safety.” Step 1 was her decision to immediately end the moratorium on executions put in place by Merrick Garland in July 2021.

Because the three people remaining on the federal death have not exhausted their appeals, this order will have no immediate effect. But looking to the future, the attorney general guaranteed that when a federal court imposes a “death sentence, the department will carry out its mandate to implement that sentence consistent with the law.”

Bondi also directed federal prosecutors to “seek the death penalty … for the most serious readily provable offenses.” Moreover, she took the unusual step of singling out two cases in which federal prosecutors should seek the death penalty, even though neither of them has gone through the department procedures traditionally used in federal death penalty cases.

Looking to undo decisions made by the Biden Justice Department, the attorney general also has ordered a review of cases handled between Jan. 20, 2021, and Jan. 19, 2025, in which a decision was made not to seek the death penalty. Finally, she ordered the Office of Legal Policy “to evaluate all potential avenues to strengthen the federal death penalty as a valid means of punishment for the heinous crimes it is intended to punish, including by promptly achieving finality in cases where a court has imposed a death sentence.”

In a separate memo, “Restoring a Measure of Justice to the Families of Victims of Commuted Murderers,” Bondi unveiled a series of steps targeting the beneficiaries of Biden’s mercy.

She directed U.S. Attorney's Offices “to assist local prosecutors in pursuing death sentences under state law.” She told the Federal Bureau of Prisons “to ensure that the conditions of confinement for each of the 37 commuted murderers are consistent with … their egregious crimes, criminal histories, and all other relevant considerations.”

In all that, nary a word about the federal death penalty’s widely recognized problems.

As the Brennan Center for Justice points out, “factors such as geography, race, and legal representation influence who receives death sentences as much as the underlying crimes. Between 1988 — when the modern federal death penalty was instituted — and the 2021 moratorium, nearly half of all federal death sentences and 10 of the 16 people executed for federal crimes came from just three states: Missouri, Texas, and Virginia.”

The Death Penalty Information Center adds: “Although sometimes referred to as the ‘gold standard’ of capital punishment … the federal death penalty … is plagued by the same serious problems as state level capital punishment systems … including ineffective assistance of counsel, prosecutorial misconduct, and arbitrariness.”

The attorney general’s silence on these matters will not make those problems go away. In their effort to bring the federal death penalty back to life, she and the president should level with the American people about the issues that have eroded support for capital punishment in this country, and what — if anything — they plan to do about them.

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.

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