« Encouraging(?) update on prospects for series of small federal sentencing reform bills | Main | In final order list of of SCOTUS OT20, Justices grant cert on 924(c) matter and spar over summary reversal in capital case »

July 1, 2021

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

The title of this post is the heading of this notable new US Justice Department press release.  Here is the main text of the press release:

Today, 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 Attorney General’s memorandum can be found at this link, and it provides a slightly expanded account for why this moratorium has been imposed and the inquiry to take place during this period.  Here is the notable "preamble" of this two-page memo:

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.  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.  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.

I am tempted to call these actions a "kick the can down the road" effort, but maybe some readers see more to this latest round of hand-wringing by yet another administration not really prepared to go "all in" on capital punishment abolition.

July 1, 2021 at 09:59 PM | Permalink

Comments

Obama conducted zero executions and commuted two death sentences, setting the stage for the Trump execution spree. Hopefully Biden learns from that experience.

Posted by: John | Jul 2, 2021 12:38:42 AM

Yes, the Trump executions are a warning.

The fact Bush43 only executed three, one being Timothy McVeigh, might have lulled the Obama Administration to think there was no pressing ground to do more. IDK

But, the result was 13 executions that were handled patently in violation of due process. A warning.

We shall see if this is inadequate.

Posted by: Joe | Jul 2, 2021 5:45:45 AM

Totally meaningless. Pertains only to method of execution. Meanwhile the administration is actively pursuing the DP in multiple cases nationwide. Biden's campaign promise was a big lie.

Posted by: afpd | Jul 2, 2021 9:59:27 AM

Not "totally meaningless."

Even if you think it is too limited, a review of the means of execution does something. The review also applies to

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

And, it is far from clear it is the only thing that will happen. It is at least a disrespect of the truth to call it a "big lie."

The link doesn't work for me. It can be obtained here:

https://www.justice.gov/opa/pr/attorney-general-merrick-b-garland-imposes-moratorium-federal-executions-orders-review

Posted by: Joe | Jul 2, 2021 11:17:23 AM

If the administration isn’t going to execute anyone, why is it necessary to review the execution protocol?

Posted by: afpd | Jul 2, 2021 6:19:06 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB