Department of Justice Formally Pauses Federal Executions to Review Trump Death-Penalty Regulations

In a mem­o­ran­dum that left to Congress the task of address­ing sys­temic ques­tions of arbi­trari­ness, racial dis­crim­i­na­tion, and wrong­ful con­vic­tions affect­ing the admin­is­tra­tion of the fed­er­al death penal­ty, U.S. Attorney General Merrick Garland (pic­tured) issued a direc­tive for­mal­ly paus­ing fed­er­al exe­cu­tions while the Department of Justice (DOJ) under­takes a review of exec­u­tive branch poli­cies adopt­ed in the last two years of the Trump administration.

Garland’s mem­o­ran­dum, issued late in the day June 30, 2021, pri­or to the fed­er­al gov­ern­men­t’s clo­sure for the July 4^th hol­i­day week­end, was as expan­sive in tout­ing con­sti­tu­tion­al guar­an­tees as it was nar­row in its focus for action. ​“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 wrote.

Garland said, “[s]erious 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.” However, while describ­ing these issues as ​“weighty con­cerns,” Garland said they ​“deserve care­ful study and eval­u­a­tion by law­mak­ers.” While oth­ers address those issues, Garland said, the Department of Justice must ​“take care to scrupu­lous­ly main­tain our com­mit­ment to fair­ness and humane treat­ment in the admin­is­tra­tion of exist­ing fed­er­al laws gov­ern­ing capital sentences.” 

The Attorney General said DOJ would review three changes to the department’s death-penal­ty poli­cies and pro­ce­dures that were adopt­ed under attor­neys gen­er­al William Barr and Jeffrey Rosen. Those changes are: an adden­dum to the fed­er­al exe­cu­tion pro­to­col, announced on July 25, 2019, that replaced the pre­vi­ous three-drug lethal injec­tion pro­ce­dure with a sin­gle-drug exe­cu­tion using the bar­bi­tu­rate pen­to­bar­bi­tal; man­ner of exe­cu­tion reg­u­la­tions that, in cer­tain cir­cum­stances, autho­rize the fed­er­al gov­ern­ment to car­ry out exe­cu­tions by elec­tric chair, fir­ing squad, nitro­gen hypox­ia, or cyanide gas; and lame-duck revi­sions to DOJ’s Justice Manual that Garland said were ​“a depar­ture from long­stand­ing prac­tice” and would ​“expe­dite the exe­cu­tion of capital sentences.”

Garland’s direc­tive does not pre­vent fed­er­al pros­e­cu­tors from seek­ing the death penal­ty in new cas­es, pur­su­ing the death penal­ty in cas­es in which the Trump admin­is­tra­tion autho­rized cap­i­tal pros­e­cu­tion, oppos­ing appeals brought by cur­rent fed­er­al death-row pris­on­ers, or seek­ing to rein­state death sen­tences that have been over­turned by fed­er­al appeals courts. Most recent­ly, the Garland Department of Justice argued in the U.S. Court of Appeals for the Fourth Circuit that the court should uphold the death sen­tences imposed on Dylann Roof for the mur­ders of nine African-American wor­ship­pers at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina and filed a brief in the U.S. Supreme Court seek­ing to restore the death sen­tence imposed on Dzhokhar Tsarnaev for his role in the Boston Marathon bombing.

Reaction to the Attorney General’s Announcement

Death Penalty Information Center exec­u­tive direc­tor Robert Dunham described the Department of Justice action as a ​“mini-mora­to­ri­um.” A review of the fed­er­al death penal­ty that is lim­it­ed to the reg­u­la­to­ry and pol­i­cy changes adopt­ed by the Trump admin­is­tra­tion to facil­i­tate the six-month exe­cu­tion spree at the end of its time in office ​“bare­ly even scratch­es the sur­face of death-penal­ty reform,” he said. ​“It may be mak­ing [some] reforms, but it isn’t ful­fill­ing the Biden cam­paign pledge” to work to end the death penal­ty. To do that, Dunham said, DOJ would have to forego seek­ing new death sen­tences and Biden would have to com­mute fed­er­al death row or win con­gres­sion­al sup­port to repeal the fed­er­al death penalty. 

Capital defense lawyers and death penal­ty oppo­nents offered mut­ed praise for Garland’s dec­la­ra­tion. Ruth Friedman, the direc­tor of the Federal Capital Habeas Project, which pro­vides assis­tance to fed­er­al death-row pris­on­ers and their lawyers in fed­er­al post-con­vic­tion appeals, said: ​“A mora­to­ri­um on fed­er­al exe­cu­tions is one step in the right direc­tion, but it is not enough. 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. President Biden, with the sup­port of the Department of Justice, can and should com­mute all fed­er­al death sen­tences to address these prob­lems. Otherwise, this mora­to­ri­um will just leave these intractable issues unreme­died and pave the way for anoth­er uncon­scionable blood­bath like we saw last year.”

Death-penal­ty abo­li­tion­ists expressed sim­i­lar sen­ti­ments. Cassandra Stubbs, direc­tor of the ACLU Death Penalty Project, tweet­ed: ​“This is a good start by the AG, but President Biden should com­mute all fed­er­al death sen­tences. The fed­er­al death penal­ty is a racist, dehu­man­iz­ing and deeply flawed sys­tem, incon­sis­tent with our val­ues and human dignity.” 

Amnesty International USA issued a state­ment by Kristina Roth, its Senior Advocate for Criminal Justice Programs, say­ing: ​“The mora­to­ri­um on fed­er­al exe­cu­tions is a wel­come first step, but more must be done imme­di­ate­ly to stop the use of the ulti­mate cru­el, inhu­man and degrad­ing pun­ish­ment, includ­ing com­mut­ing all fed­er­al sen­tences.” Witness to Innocence, an orga­ni­za­tion of for­mer death-row pris­on­ers exon­er­at­ed from wrong­ful con­vic­tions, tweet­ed that the DOJ’s reg­u­la­to­ry review mora­to­ri­um is a ​“step in the right direc­tion, but not enough. Biden can and SHOULD com­mute fed death row,” they said.

Representative Ayanna Pressley (D – Massachusetts), the lead spon­sor of one of the two bills to abol­ish the fed­er­al death penal­ty that have been intro­duced in the House of Representatives, also urged the President to do more to effec­tu­ate his cam­paign pledge. ​“Today, the Department of Justice took wel­come and long over­due action,” she said in a press release. ​“I applaud the Biden Administration for being respon­sive to our calls and to the gen­er­a­tions of activists orga­niz­ing to abol­ish the death penalty.”

“We con­tin­ue to call on President Biden to com­mute the sen­tences of those on death row and ensure a fair resen­tenc­ing process, direct DOJ pros­e­cu­tors to no longer seek the death penal­ty and dis­man­tle the death row facil­i­ty at Terre Haute,” she said.

Archbishops Paul S. Coakley of Oklahoma City and Joseph F. Naumann of Kansas City, Kansas released a let­ter on behalf of the U.S. Conference of Catholic Bishops. ​“The news of the Department of Justice’s mora­to­ri­um on fed­er­al exe­cu­tions is a wel­come step,” the bish­ops wrote, ​“and we must also tire­less­ly con­tin­ue to advo­cate for the abo­li­tion of the death penal­ty from both our state and fed­er­al laws as we build a cul­ture of life.”

Krisanne Vaillancourt Murphy, exec­u­tive direc­tor of the Catholic Mobilizing Network, said the mora­to­ri­um, ​“though a dis­cernible first step, is not enough on its own. … More needs to be done,” she said. ​“President Biden promised a per­ma­nent road clo­sure on the fed­er­al death penal­ty; a mora­to­ri­um is more like a tem­po­rary stop sign on the road to [future] fed­er­al exe­cu­tions,” Vaillancourt Murphy said.

Death-penal­ty pro­po­nents were large­ly silent. In a tweet, Arkansas U.S. Senator Tom Cotton false­ly claimed that the tem­po­rary mora­to­ri­um would delay the exe­cu­tion of Dylann Roof, whose direct appeal is cur­rent­ly pend­ing before a fed­er­al appeals court and, if he los­es that appeal, has years of fed­er­al habeas cor­pus review after that. ​“White suprema­cist Dylann Roof mur­dered nine African Americans at a Bible study,” Cotton tweet­ed. ​“Merrick Garland just paused his exe­cu­tion. Disgraceful.”

In fact, the mora­to­ri­um does not affect Roof’s case and does not delay any ongo­ing fed­er­al death penalty appeal.