Garland’s Moratorium on Federal Executions

A thorough review of the fairness of the process will be conducted.

From the Justice Department:

Attorney General Merrick B. Garland Imposes a Moratorium on Federal Executions; Orders Review of Policies and Procedures

[On July 1], Attorney General Merrick B. Garland issued a memorandum imposing a moratorium on federal executions while a review of the Justice Department’s policies and procedures is pending.

“The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely,” said Attorney General Garland. “That obligation has special force in capital cases.”

In the last two years, the department made a series of changes to capital case policies and procedures and carried out the first federal executions in nearly two decades between July 2020 and January 2021. That included adopting a new protocol for administering lethal injections at the federal Bureau of Prisons, using the drug pentobarbital. Attorney General Garland’s memorandum directs the Deputy Attorney General to lead a multi-pronged review of these recent policy changes, including:

*A review coordinated by the Office of Legal Policy of the Addendum to the Federal Execution Protocol, adopted in 2019, which will assess, among other things, the risk of pain and suffering associated with the use of pentobarbital.

*A review coordinated by the Office of Legal Policy to consider changes to Justice Department regulations made in November 2020 that expanded the permissible methods of execution beyond lethal injection, and authorized the use of state facilities and personnel in federal executions.

*A review of the Justice Manual’s capital case provisions, including the December 2020 and January 2021 changes to expedite execution of capital sentences.

The Attorney General’s memorandum requires the reviews to include consultations with a wide range of stakeholders including the relevant department components, other federal and state agencies, medical experts and experienced capital counsel, among others.

No federal executions will be scheduled while the reviews are pending.

The actual memorandum notes,

Serious concerns have been raised about the continued use of the death penalty across the country, including arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases. Those weighty concerns deserve careful study and evaluation by lawmakers.

Garland expresses additional concerns, including orders to speed up executions in the latter stages of the previous administration and the Supreme Court’s refusal to grant an expedited hearing as to whether pentobarbital amounts to cruel and unusual punishment under the 8th Amendment.

As a USA Today report on the decision notes, Garland hinted at this during his confirmation hearings, especially noting his concern over the fact that a significant number of people sentenced to die have been exonerated.

I would be shocked if a federal execution is carried out under the Biden administration. But this leaves us in the bizarre situation where capital punishment is available for federal crimes, is occasionally sentenced by federal courts, but not actually carried out by the executive.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jon says:

    This is a good first step. Killing somebody is wrong, no matter who does it. Sometimes it is the lesser evil, if you don’t have any other options, but given our enormous carceral capacity the federal government clearly has better options than killing.

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  2. drj says:

    But this leaves us in the bizarre situation where capital punishment is available for federal crimes, is occasionally sentenced by federal courts, but not actually carried out by the executive.

    Not in a country where pardons and commutations by the executive (either state or federal) are common as dirt.

    In fact, a universal rule (such as this) is considerably less problematic than a situation in which presidents or governors are free to pardon their cronies.

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  3. James Joyner says:

    @drj: That’s rather a non sequitur. Which gubernatorial or presidential crony has been pardoned for capital crimes? Or is the argument that, if we have a pardon, we can’t have a death penalty? If so, why? I’m more skeptical of the latter than the former, but don’t see them as in any way linked.

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  4. mattbernius says:

    I would be shocked if a federal execution is carried out under the Biden administration. But this leaves us in the bizarre situation where capital punishment is available for federal crimes, is occasionally sentenced by federal courts, but not actually carried out by the executive.

    Or, worse, not carried out under one executive and then expedited under another.

    Suspending executions is a good first step. The next is to eliminate the death penalty at the federal level. The issue of whether or not to execute should not be an issue of executive fiat. Unfortunately, I believe that change in sentencing would be the responsibility of Congress and I suspect that’s DOA (even if the filibuster was not in place) in the Senate.

    Unless I’m mistaken (looking at you @HL92 for verification), Biden does have the power to commute all the sentences of current Federal Prisoners on Death Row to life. It will be interesting to see if that’s an outcome of this review. Unfortunately, I’m not holding my breath due to high profile nature of at least one person currently awaiting execution. Commutations, while morally correct (in my opinion), would create a huge amount of political heat.

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  5. drj says:

    @James Joyner:

    The argument that is that since the executive has a wide discretion to issue pardons and commutations, it’s not suddenly inherently problematical if certain judicial sentences are not (fully) carried out. That’s already an inherent aspect of the US criminal justice system.

    Further to that, I would argue that the executive using its power to commute in a predictable manner offers far less opportunity for corruption and cronyism than if presidents and governors commute or pardon according to their personal discretion.

    For instance, Trump’s pardon of Michael Flynn is (pretty much undeniable, IMO) much more of an affront to justice than a formally announced moratorium on federal executions.

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  6. HarvardLaw92 says:

    @mattbernius:

    You’re correct. The sitting president has the power to commute any federal sentence by reduction to whatever alternative he/she feels appropriate. Taken to the extreme, that could hypothetically look like commuting a death sentence to one day in prison (or less). The power is constitutionally absolute, solely within the president’s discretion, and not subject to judicial / Congressional review. You’d have to amend the Constitution to alter / revoke it.

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  7. HarvardLaw92 says:

    @Jon:

    I’ll have to waver a bit on that. While I think there are absolutely crimes for which a death sentence is appropriate, most especially in my own mind the victimization of children, my reservations about capital punishment center more on the unworkability of a permanent penalty adjudicated and administered by an imperfect system.

    We’ve seen too many examples of people being wrongfully convicted to ever presume that we can be in a position to achieve the certitude that’s required to justify the state putting someone to death. It’s bad enough when the error costs someone irreplaceable years of their life, but at least in that instance we can still do something, however insufficient that something must unavoidably be, to remedy the damage to the victim. There is no remedy that can be offered to mitigate executing someone by mistake, so the only morally defensible conclusion has to be that the penalty must be taken off of the table until we can achieve absolute certainty of guilt (which in practical terms means indefinitely).

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  8. Matt Bernius says:

    @HarvardLaw92: cosign…. Very well reasoned.

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  9. Argon says:

    The United States Conference of Catholic Bishops on the subject of Bill Barr, who actively expedited federal executions, receiving communion:

    *crickets chirping*

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  10. OzarkHillbilly says:

    @HarvardLaw92: While I think there are absolutely crimes for which a death sentence is appropriate, most especially in my own mind the victimization of children, my reservations about capital punishment center more on the unworkability of a permanent penalty adjudicated and administered by an imperfect system.

    QFT.

  11. Teve says:

    @HarvardLaw92: that argument is what moved me from pro-death penalty to anti-. I encountered that argument around the time Texas executed Cameron Todd Willingham on what was almost certainly 100% bullshit arson “evidence”.

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  12. HarvardLaw92 says:

    @Teve:

    I can’t imagine being a prosecutor who got it wrong. Something like that would haunt me forever. Unbearable guilt and shame. Admittedly I was unlikely to have ever been faced with prosecuting such a case, but still. I can’t begin to imagine having to (or being able to) live with something like that.

    That case was what began to change my mind as well. Calling it a travesty doesn’t begin to cover it.

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  13. de stijl says:

    I am of the opinion that the state killing someone should be solemn and gruesome. The ultimate display of state power.

    And screw intermediated dodges of electricity or drugs administered! No dodges allowed.

    Full firing squad where the governor and the prosecutor are the squad, and the convicting jury must witness first hand. They pull the trigger together.

    All hands on deck from the prosecutors office as full witnesses. The result of your advocacy and behind the scenes work resulted in this and needs to be witnessed first-hand for you to gauge and fully understand its effect.

    If you want to be a state that allows the death sentence there should be a personal price paid fully amongst applicable folks.

    It is an enormous responsibility and burden. You shoulder it rather than shuffling it along to subordinates. You, by act of state, are taking a person’s life. So you have do it.

    Ned Stark rules apply here.

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  14. HarvardLaw92 says:

    @de stijl:

    Agreed. 100%

  15. Dudley Sharp says:

    Shocking. We has a 17 year moratorium on executions, without declaring it, prior to Trump.

    The unfairness is the delay.

  16. Dudley Sharp says:

    de stjl:

    Governors, prosecutors and juries should be required to observe those they sentenced to life without parole.

    If you want to be a state that allows a life sentence there should be a personal price paid fully amongst applicable folks.

    It is an enormous responsibility and burden. You (should) shoulder it rather than shuffling it along to subordinates. You, by act of state, are taking a person’s life. So you have do it.

    Great philosophical position.

  17. Dudley Sharp says:

    @Teve:

    Did fact check, vet and research anything you read about the Cameron Todd Willingham case?

    I ask, because I fact checked, vetted and researched everything I read about that case, here:

    The Guilt of Cameron Todd Willingham 
    https(COLON)//prodpinnc.blogspot(DOT)com/2009/10/cameron-todd-willingham-media-meltdown.html 

  18. Dudley Sharp says:

    @Jon:

    Of course the government has other options than killing.

    More importantly, the judges and jurors were given the option of life or death, in these cases, and they chose death as the most just and appropriate sanction for the crimes committed.

  19. Dudley Sharp says:

    To: AG Garland:

    1) The “Exonerated”

    Possibly, we may have found 33 actually innocent persons sentenced to death, from 1973-2019, that being about 0.4%, all of whom have been released. (1)

    The current claimed 180 number of “exonerated”/”innocent” from death row is based upon a well known (since 2000) and easily confirmed redefining of both “innocent” and “exonerated”, which is akin to redefining “lie” as “truth”, as detailed:

    Deception: The DPIC “Exonerated”/”Innocence” List
    (see fact checking/vetting model-use it)
    https(COLON)//prodpinnc.blogspot(DOT)com/2019/09/deception-dpic-exoneratedinnocence-list.html

    2) People of Color

    White murderers are twice a likely to be sentenced to death as are black murderers and are executed at a rate 41% higher than are black death row inmates.

    Much more here: RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
    https(COLON)//prodpinnc.blogspot(DOT)com/2012/07/rebuttal-death-penalty-racism-claims.html

    3) The death penalty is applied to the fewest of cases and has the greatest of protections for the guilty murderer and the actual innocent accused . . .  unmatched by any other sanction protocol, as they should be. Nationwide, rape convictions may result in probation or life. With the death penalty, only two sentences are possible: The death penalty or life.

    By definition, the least arbitrary and capricious.

    Much more, here: THE DEATH PENALTY: LEAST ARBITRARY & CAPRICIOUS SANCTION
    http(COLON//prodpinnc.blogspot(DOT)com/2013/03/the-death-penalty-neither-arbitrary-nor.html

  20. Dudley Sharp says:

    @Argon:

    As you may know, the teachings on the death penalty are not that it is an intrinsic evil, as abortion.

    The 2018/2019 “impermissible” application of the death penalty was made, by the Pope and the Church, dependent upon two, alleged foundations, those being 1) that we have a new understanding of the dignity of the guilty murderer, somehow exclusive of both Genesis 9:5-6 and the teachings of the dignity of man, over the past 2000 years. There are no such new teachings. and 2) the state of the criminal justice system, being so wonderful, that we no longer have to worry about violent criminals harming, again, which we, of course, all know is nonsense (1), not to mention eternal supportive death penalty teachings, starting with Jesus, and extending for 2000, years, with support from the greatest of Popes, Saints and Doctors of the Church, biblical and theological scholars, never having been negated and based within justice, not defense.

    Chirp, chirp.

    1) The Catechism and State Protection
    http(COLON)//prodpinnc.blogspot(DOT)com/2014/10/catechism-state-protection.html

  21. HarvardLaw92 says:

    @Dudley Sharp:

    You’re trying to engage in necromancy.

  22. Dudley Sharo says:

    No. Understanding.

    For example, do you, even know, what necromancy means?

  23. HarvardLaw92 says:

    @Dudley Sharo:

    Mmhmm, communicating with the dead, as in “this thread is …”

  24. Dudley Sharp says:

    Exactly. You are hallucinating.

    The practice of supposedly communicating with the spirits of the dead in order to predict the future.
    n. Black magic; sorcery.
    n. Magic qualities.