Justice Department Issues Federal Execution Moratorium 

The Justice Department on Thursday night issued a moratorium on federal executions and ordered reviews by various department entities. 

In July 2019, then-Attorney General William Barr authorized executions after a hiatus starting in March 2003. Currently, 23 states, plus the District of Columbia have abolished the death penalty and there is a moratorium on executions in California, Oregon and Pennsylvania. President Biden said during the campaign he would support legislation to permanently end capital punishment and give incentives for states to do so as well. 

“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,” said Attorney General Merrick Garland in a memo to senior Justice officials. “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.” 

Garland directed the deputy attorney general to supervise a series of reviews that will involve a variety of federal entities. 

The Office of Legal Policy will review the federal execution protocol adopted in July 2019 that allowed for the use of the drug pentobarbital sodium. The review will “assess the risk of pain and suffering associated with the use of pentobarbital” as well as “address any other relevant portion of the addendum,” Garland said. 

This review will be done in consultation with the Justice Department’s Bureau of Justice Statistics, Bureau of Prisons, Drug Enforcement Administration, Civil Division, Civil Rights Division, Criminal Division, National Institute of Justice, and U.S. Marshals Service. Other federal agencies, including the Health and Human Services Department, will be involved, along with relevant state agencies, medical experts and other appropriate stakeholders. 

Another review will be on a regulation the Trump administration finalized in November 2020 that expanded the acceptable methods of executions and allowed state facilities and personnel to be used in federal executions. 

The Office of Legal Policy, under the supervision of the deputy attorney general, will coordinate a review of this and consider if any aspect should be changed, modified or rescinded. The regulation was one of the “consequential and controversial” regulations the Trump administration sought to finalize during the transition, as ProPublica tracked. 

The last review will be on the department’s manual on capital case provisions “including the December 2020 and January 2021 changes to expedite execution of capital sentences,” said the memo. Garland tasked the deputy attorney general, along with the department’s criminal division and other relevant components, to do this review. 

ABC reported that the memo “is not expected to impact the department's position taken recently in the case of Boston bomber Dzokhar Tsarnaev” as “officials last month urged the Supreme Court to overturn a lower court's ruling and reinstate Tsarnaev's death penalty despite Biden's stated opposition to capital punishment.” 

When asked during the briefing on Friday if the president was satisfied with the move and if Justice department lawyers should continue seeking the death penalty or hold off, White House Press Secretary Jen Psaki said Biden was clear during his first conversations with Garland, before he was confirmed, that he wants to end executions and he was “pleased” with the recent move. She did not give explicit answers to follow-up questions about introducing legislation to end federal executions or commuting sentences for those on death row. 

As of June 4, there were 45 federal inmates on death row, according to the Federal Capital Habeas Project, a division of the Federal Defender Program. 

On November 13, 2020, four Democratic lawmakers asked the Justice Department to suspend federal executions during the presidential transition, so the incoming administration can reassess whether to move forward on them. However, that did not happen. 

Between July 14, 2020 and January 16, 2021, there were 13 federal executions, six of which were after the news outlets called the election for Biden. Prior to the pause in executions, there was one in March 2003 and two in June 2001. There weren’t any in the 1970s to 1990s. There aren’t any federal executions currently scheduled, according to the Federal Bureau of Prisons website. 

The American Civil Liberties Union commended the Biden administration’s move. However, to fulfill his campaign pledge, “President Biden should commute all death sentences and impose a full moratorium on capital prosecutions,” said Cassandra Stubbs, director of the ACLU Capital Punishment Project, in a statement. 

Scott Taylor, BOP spokesman, told Government Executive he could not comment beyond what was released by the attorney general.