Attorney General Nominee Merrick Garland Expresses Concerns About Death Penalty in Senate Confirmation Hearing

Expressing con­cerns about wrong­ful con­vic­tions, racial­ly dis­parate impact, and arbi­trari­ness, Attorney General nom­i­nee Merrick Garland (pic­tured) told the Senate Judiciary Committee dur­ing his con­fir­ma­tion hear­ing on February 22, 2021 that the death penal­ty has giv­en him ​“great pause.” Garland said that he ​“expect[s] that the President will be giv­ing direc­tion” on the fed­er­al death-penal­ty pol­i­cy, and that it was ​“not at all unlike­ly” that the Department of Justice would impose a mora­to­ri­um on the fed­er­al death penalty.

Prior to his appoint­ment as a judge of the U.S. Court of Appeals for the District of Columbia Circuit, Garland head­ed the Department of Justice (DOJ) inves­ti­ga­tion into the Oklahoma City bomb­ing that led to the fed­er­al cap­i­tal pros­e­cu­tion and exe­cu­tion of Timothy McVeigh. President Barack Obama nom­i­nat­ed Garland to the U.S. Supreme Court to fill the vacan­cy cre­at­ed by the death of Antonin Scalia, but his appoint­ment was blocked when Senate Republicans refused to hold any confirmation hearings. 

Garland told the com­mit­tee that he ​“sup­port­ed the death penal­ty at that time for McVeigh, in that indi­vid­ual case” and that ​“I don’t have any regret” about his role in McVeigh’s case. However, he said, he had ​“devel­oped con­cerns about the death penal­ty in the 20-some years since then.” Among the sources of his con­cern, he cit­ed ​“the large num­ber of exon­er­a­tions that have occurred,” ​“the increas­ing almost ran­dom­ness or arbi­trari­ness of its appli­ca­tion,” and its ​“enor­mous­ly dis­parate impact on Black Americans and mem­bers of com­mu­ni­ties of color.” 

Challenged by Sen. Tom Cotton (R – Arkansas) on whether he would seek the death penal­ty in a case such as the Oklahoma City bomb­ing or Charleston church shoot­ing, Garland respond­ed: ​“It depends on what the devel­op­ment of the pol­i­cy is. If the President asks or if we devel­op a pol­i­cy of a mora­to­ri­um, then it would apply across the board. There’s no point in hav­ing a pol­i­cy if you make indi­vid­ual dis­cre­tionary deci­sions. So, if that’s the pol­i­cy, then that would be the policy.” 

In a February 19 let­ter, the Leadership Conference on Civil and Human Rights, joined by 58 civ­il rights, labor, and pub­lic advo­ca­cy orga­ni­za­tions, urged the U.S. Senate to con­firm Garland to as Attorney General. ​“We need an Attorney General who will rein­state the Justice Department’s his­toric com­mit­ment to integri­ty, inde­pen­dence, and vig­or­ous civ­il rights enforce­ment,” the groups wrote. ​“Judge Garland would be such an Attorney General and is a fit­ting choice to lead the Justice Department at this moment.”