DOJ Declares Temporary Moratorium on Federal Executions

Attorney General Merrick Garland Thursday issued a moratorium on scheduling of federal executions, pending a study by the Department of Justice on fairness. In a memo to federal prosecutors he wrote:

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," he added. "Those weighty concerns deserve careful study and evaluation by lawmakers."

...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. That obligation has special force in capital cases," Garland said in the memo.

Shorter version: Smackdown to Donald Trump who had his AG William Barr resume executions after a 20 year hiatus. Under Donald Trump, 13 inmates were killed just in his last year of office.


Longer version: AG Garland's memo to prosecutors. The arbitrariness in which the dealth penalty is applied which results in a disproportionate number of people of color being subjected to it, and the increasing number of wrongful convictions we learn about through DNA evidence that wasn't tested or wasn't disclosed at the time of the trial, aren't what's on tap to be studied right now. Right after Garland says these "weighty concerns deserve careful study", he adds:

Those weighty concerns deserve careful study and evaluation by lawmakers. In the meantime, the Department must take care to scrupulously maintain our commitment to fairness and humane treatment in the administration of existing federal laws governing capital sentences.

"In the meantime" is followed by the 3 specific matters will take be reviewed now. The three things were all changes made by Donald Trump.

1. Use of Pentabarbitol as the sole drug rather than the previously used three-drug coctail. See, You Wouldn't Do a Dog This Way.

2. Allowing states to choose other forms of execution besides lethal injection (like hanging, firing squad, gas chamber). This was an amendment that Donald Trump made in November, 2020. Again the review will be by the the Office of Legal Policy, under the supervision ofthe Deputy Attorney General. Here's a list of botched executions from all methods.

3. Donald Trump's changes that were intended to speed up executions and lessen time on death row (i.e., reduce appeals). These changes were made to the DOJ Manual in December 2020 and January 2021 and applied to Title 9, Chapter 10. Garland writes: "See, e.g., J.M.§§ 9-10.190(8), 9-10.210." This review will be by "the Deputy Attorney General in consultation with" the DOJ criminal division and other relevant components.

Reviewing and repealing changes made by Trump is a step in the right direction, but hardly enough. It's just a return to the status quo that existed before Trump. The federal death penalty system has been rife with racial disparity, wrongful convictions, lack of competent defense counsel for decades. From the Director of the Federal Capital Habeas Project:

"A moratorium on federal executions is one step in the right direction, but it is not enough," said Ruth Friedman, director of the Federal Capital Habeas Project. "We know the federal death penalty system is marred by racial bias, arbitrariness, over-reaching, and grievous mistakes by defense lawyers and prosecutors that make it broken beyond repair."

Friedman said Biden should commute all federal death sentences, warning that a pause alone "will just leave these intractable issues unremedied and pave the way for another unconscionable bloodbath like we saw last year."

Keep your eye on this one. The fox is guarding the hen house. DOJ is in charge of investigating its own policies. He lists all the "stakeholders" that should be considered, and includes "capital counsel", but he doesn't include the word "defense" or "habeas". So is it just capital prosecutors who will be consulted or federal capital habeas and defense counsel as well? When you are talking about how many minutes the inmate laid in pain on the gurney before he stopped breathing, I think the defense lawyer who represented him and attended the execution should be consulted in the review process.

I think it was a bit disingenous of Garland to start his memo with the unfair manner in which the death penalty is imposed and then offer no review of any policy related to that. The three reviews he ordered are limited to Donald Trump's changes in how executions are carried out. He does not say he is initiating a review of the arbitrary manner in which prosectuors seek the death penalty, the disparate effect on minorities or a review addressing the problem of wrongful convictions.

The problems with the federal death penalty go back decades. Joe Biden was the architect of so many bills that created the problems, it's hard to believe he will be the sponsor of any major changes, or even do what former Illinois Governor George Ryan had the courage to do -- commute the death sentences of every death row inmate to life.

< Trump Organization and Alan Weisselberg Indicted | President of Haiti Assassinated >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Pennsylvania, which has the largest death row (5.00 / 1) (#1)
    by Peter G on Sat Jul 03, 2021 at 09:59:23 AM EST
    in the North, has been under a similar capital punishment "moratorium" (general reprieve), while the Governor "studies" flaws in the system, since February 2015, for more than six years. It's not repeal, but runs a pretty good second.