Is it really so hard to make sense of AG Garland's federal capital punishment administration?

The question in the title of this post is my reaction to this lengthy new Washington Post article headlined "Justice Department standards on federal death penalty called confusing."  Here are excerpts (with a few points highlighted for commentary to follow):

The Justice Department’s disparate approaches in a pair of mass-killing cases is generating accusations that the Biden administration has failed to press for the elimination of capital punishment and is not applying clear standards in judging who, if anyone, should face the death penalty.

On Monday, federal prosecutors will begin the death penalty phase in the trial of Sayfullo Saipov, who was convicted last month on murder and terrorism charges for fatally hitting eight pedestrians with a truck on a New York City bike path in 2017.  That comes days after the Justice Department announced an agreement allowing Patrick Crusius, who pleaded guilty to killing 23 people and injuring 22 while targeting Mexicans during a mass shooting rampage at a Walmart in El Paso in 2019, to avoid the death penalty.  He faces life in prison....

Analysts said the Justice Department’s decisions in those cases and several others make it difficult to detect a consistent policy more than two years into the Biden presidency.  As a candidate, Biden made promises to push for legislation banning capital punishment over concerns about how federal executions are carried out and how prosecutors have disproportionately targeted racial minorities and the poor.

Biden has said little about the issue since taking office. Attorney General Merrick Garland has deauthorized 25 death penalty cases that were started under previous administrations, and the Justice Department has not authorized any new capital cases since he took over in 2021.

The Justice Department in 2021 and 2022 continued to back capital convictions in the face of appeals from Dylann Roof, a White man who fatally shot nine Black parishioners in Charleston, S.C., in 2015, and Dzhokhar Tsarnaev, who orchestrated, along with his older brother, a bombing that killed three at the Boston Marathon in 2013. Federal courts upheld both of their death penalty sentences.

Meantime, seven federal capital cases, including Saipov’s, remain active, Justice officials said.  Among them is the government’s prosecution of Robert Bowers, who is set to stand trial in April on charges related to the mass shooting that slaughtered 11 people at the Tree of Life synagogue in Pittsburgh in 2018.

“It’s really hard to say what’s going on,” said Monica Foster, a federal public defender representing Jairo Saenz, an MS-13 gang member who, along with his brother Alexi, are facing capital charges in connection with seven killings in Long Island in 2016.  Federal prosecutors announced in 2020 that they would seek the death penalty for both men; Foster, who recently took over Jairo Saenz’s defense, said she intends in March to ask Garland to withdraw the death penalty — a formal Justice Department process known as a deauthorization request.  Lawyers for Alexi Saenz said they, too, will seek deauthorization....

“They clearly are willing to walk back prior authorizations, so then it’s just a question of when?” said Nathan Williams, a former federal prosecutor who helped oversee Roof’s conviction in 2015.  “What’s distinguishing those cases, the ones they dismissed the notice on, from the cases of Bowers or Roof or Tsarnaev?  My guess is that they are less egregious cases. But then on the more egregious ones, are we seeing a general policy or a reflection of individual decisions on cases?”

The answer could have a direct bearing on another high-profile case, as the Justice Department is still deliberating over whether to pursue a capital case against Payton Gendron, a White man who faces 27 hate-crime and gun-related offenses in the fatal shooting of 10 Black people in a Buffalo grocery store last year.  Gendron live-streamed his attack and is alleged to have written a 180-page manifesto spouting white supremacist conspiracy theories and anti-Black and anti-Jewish rhetoric, while laying out plans for the assault.

“I was more than a little surprised when I saw what happened” in the Saipov bike path case, said Terrence Conners, a lawyer who represents victims’ families in the Gendron case.  The families have expressed split opinions over whether Gendron should face capital punishment. “The expressed policy of the Biden administration and the policy of Merrick Garland has been anti-death penalty,” Connors said. “With the horrible events in Buffalo and the racial animus and the predetermination [from Gendron], it may be a case that changes their minds.”

The Justice Department has long-standing policies governing how decisions on capital cases are made. The process, which typically takes more than a year, includes recommendations from a capital case committee in Washington, U.S. attorneys and the department’s Civil Rights Division, along with input from victims’ families, defense attorneys and community leaders.... Administration officials cautioned that because Garland has not authorized any new death penalty cases, it does not mean he is firmly opposed to doing so.  The officials spoke on the condition of anonymity, citing active legal cases....

Cassie Stubbs, director of the ACLU’s Capital Punishment Project, suggested Garland might be distinguishing between honoring decisions in capital cases made by prior administrations, while staking out his own legacy in not approving any new cases under his watch....

In announcing Crusius’s plea deal in El Paso, under which he faces 90 consecutive life sentences, assistant U.S. Attorney Ian Hanna acknowledged that the defendant has schizoaffective disorder, a signal that the government viewed the disability as a mitigating factor against capital punishment.

Crusius’s legal team had hired an outside expert, who made the diagnosis, and the Justice Department agreed with the findings, in part because the expert was someone that federal authorities also have consulted on cases and trusted, according to a federal government official who spoke on the condition of anonymity to discuss private deliberations. The Justice Department’s position in the Crusius case stands in contrast to the decision made by El Paso’s district attorney’s office, which is seeking the death penalty in the state’s murder case against Crusius, of Allen, Tex.

Twenty-three states have abolished the death penalty, while three — Oregon, Pennsylvania and California — have a moratorium against it. The number of state executions has fallen from 60 in 2005 to 18 in 2022, according to the Death Penalty Information Center. Texas has executed 581 people since 1977, nearly five times more than Oklahoma, the state with the second-most executions.

The lines I have emphasized from these excerpts make it not "confusing" for me to make sense of the current administration's approach to capital punishment.  For starters, two years in, AG Garland has not authorized any new federal capital cases. But, showing respect for the fact that Congress has not repealed the death penalty, he also has not announced that he would never seek a federal capital charge.  So why not seek capital punishment for Patrick Crusius?  In addition to the fact the mental health issues, the feds could be confident that a capital prosecution could be pursued, perhaps a lot more efficiently, by state prosecutors in Texas, a state with a considerable capital track record. (The Buffalo mass shooting, in a state without the death penalty, presents a harder question and it will be interesting to see AG Garland's capital decision there.)

Next, for ongoing cases, it makes perfect sense that AG Garland, exercising his prosecutorial discretion, would "deauthorize" capital prosecution in the "less egregious" cases but not in the "more egregious" cases.  I am not familiar with all the facts in all recent federal capital cases, but the idea that federal capital cases would keep moving forward in the most horrific mass killings and would not in less extreme cases seems entirely in keeping with a view of the death penalty being reserved for "the very worst of the worst."  Moreover, in mass killing cases, there are likely a greater number of victims and victims' family members who may express a strong interest in having the federal capital cases continued.

Of course, capital punishment abolitionists are always going to be grumpy when any capital case continues and capital punishment advocates are often going to be troubled when certain capital cases are not aggressively pursued.  But, the fact that AG Garland is taking a cautious case-by-case approach to capital cases does not make his standards inherently confusing or unprincipled.  Indeed, considering each case carefully on its own merits seems absolutely essential to the effective administration of justice in capital and non-capital cases.