Death Penalty

The Department of Justice's Moratorium on Executions Is Not What Biden Promised

Nevertheless, it will at least temporarily stop the federal death penalty.


Attorney General Merrick Garland sent out a memo Thursday temporarily halting all federal executions so that the Justice Department can conduct a review of death row protocols.

The memo essentially dismantles the system that former Attorney General William Barr put into place during the final year of former President Donald Trump's administration, one that led to the executions of 12 men and one woman over the course of six months.

This memo does not actually indicate that the Justice Department seeks to eliminate the death penalty, which is something that President Joe Biden promised on the campaign trail. Rather, Garland is telling the Bureau of Prisons to review the use of pentobarbital sodium as the sole execution drug in order to analyze medical concerns that the drug causes pain to prisoners as they're being put to death. Also set for review are a couple of other procedural changes that Barr put into place.

The use of pentobarbital sodium as the execution drug has prompted legal challenges all the way up to the Supreme Court trying to stop its use. The Supreme Court has declined to intervene, though Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer have all been encouraging the full Court to review some of these executions.

"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," Garland said in a prepared statement.

So for the time being, there will be no federal executions.

Nevertheless, this same Justice Department is fighting to maintain the authority to execute death row inmates and to grant death sentences to people convicted of capital crimes. Just two weeks ago the Justice Department sent a brief to the Supreme Court asking it to reinstate the death penalty sentence handed down to Boston Marathon bomber Dzhokhar Tsarnaev. A federal judge vacated the sentence after determining a couple of jurors showed signs of bias that the trial judge ignored.

It's very easy at this point, unless Biden actually commutes the sentences of the 50-plus prisoners currently on federal death row, for the Department of Justice to simply spin its wheels with a review and not execute any inmates during Biden's first term. And perhaps few will notice that Biden hasn't actually ended the death penalty. During former President Barack Obama's two terms, no federal inmates were executed, but the Justice Department did continue to seek the death penalty, as it did with Tsarnaev.

This does buy time for death row inmates if Congress is willing to actually move forward with a bill to end the federal death penalty, which is what Biden would prefer. But right now, that bill is languishing in the House Subcommittee on Crime, Terrorism, and Homeland Security. Biden has the power to commute each of the existing federal death sentences to life in prison if he is interested in doing so.

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  1. Ugh, bamboozled again.

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  2. Reason posting their Ls.

    Hope it doesn’t get banned like journalists posting their Ls did.

    1. Could someone explain this to me?

      1. OK, “L” is slang for losing, so I guess posting their Ls means advertising how they lost?

        1. But who got banned for this?

    2. For all their talk about federal law enforcement, they haven’t even once mentioned the DOJ acting like a Gestapo going after anyone who was in remote proximity of the Capitol.

      1. tHAt’S diFfErENt!!!!! tReASon!!!!!!!!!! INsUreCTion!!!!!!!!!!!!!!

      2. While DAs around the country drop charges for 2 billion in damages from the riots

  3. SleepyJoe lied? Say it ain’t so.

    1. Is it really a lie, when he was just reading what someone else put into the teleprompter — then forgot what it said?

  4. Who was it that wrote the bill expanding the death penalty in the 1990’s?

  5. You honestly think Biden is going to commute the sentence of a convicted terrorist and murderer? Even that sad sack of dementia has better things to do.

  6. >>that bill is languishing

    Biden can say he wants all kinds of shit Congress will never approve.

    1. 90% of what presidential candidates say they will do is not within their powers of discretion. The participation of Congress is paramount, if not for changing the law but in the funding of it. And then you get into whether they need the opposing party or whether their actions are upheld by the court.

  7. As I suspected, Biden’s specific promise was to “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”

    He didn’t promise to commute sentences. He wanted to pass the buck to Congress.

    1. As far as wanting to end the death penalty *permanently*, yes. The buck should be passed to Congress because that’s where it belongs. There are too many important policy choices already that are subject to the whims of the executive.

      1. *If* the death penalty is wrong, I see no objection to the executive commuting existing death sentences – of course he can’t commute future death sentences (at least not under a standard, non-crazy interpretation of the Constitution), but the executive (Kings, governors, Presidents) often used their clemency power to abate undue severities in the law.

        (See Kathleen Dean Moore, Pardons: Justice, Mercy and the Public Interest)

        1. I would be fine with that. But it’s not a long-term fix as you note.

        2. The executive is bound by the Take Care clause. Outright ignoring constitutional laws is not in their purview.

          1. But the only possible remedy for violating that is impeachment. And thanks that guy whose colon you wished you inhabited, the standard now is “Nothing” is a high crime or misdemeanor serious enough for removal.

    2. Which seems quite appropriate as congress has the actual, constitutional power to decide if there should be a federal death penalty or not.

      1. Take another look at that worthless piece of parchment – – – – – – – – – – – –

  8. Yeah Biden could commute those sentences to life in prison, but that would require some political courage and he doesn’t have that. He’ll wait for bipartisan agreement that never comes.

  9. Every time I see I picture of Merrick Garland, he looks older than Fauci and Biden combined.

    1. There is something really odd about his face that I can’t quite put my finger on.

      1. Reminds me of Droopy the dog.

      2. I can’t quite get by the cartoon figure who gets his face pinched in a pair of sliding doors and it stays that way. However, he’s one of those scrawny little guys, 120# who eats 2 crackers and a spoon of tuna for lunch, yet survives to 100.

  10. Garland’s what Ellen will look like in a few years.

    1. ^ Classic!

  11. GWAS for Plant Breeding
    Lifeasible is a plant biotechnology company offering a wide array of molecular breeding services.

  12. Does anyone, even at Reason, really believe that Biden is actually making any decisions? Or that he’s even _capable_ of making decisions at this point?

  13. Should be a non-issue as few crimes should ever be prosecuted by the feds. Fucking interstate commerce clause’s re-interpretation from its original meaning has damned this country.

    1. According to the article there are only 50 people this qualifies for. I’ll suggest this is more of a nuance for the sake of saying he did something than anything else. With a number that low, it’s likely that these death row inmates are people who have committed first degree murder against a federal officer while on duty or someone died in an act of terrorism. And ironically, such federal situations were likely to upend liberal prosecutors who would purposely foul such a murder charge by taking out of their hands.

      On the flip side, such falderal over whether a heinous murderer suffers a little pain while they are being killed is absurd. Second, while I wouldn’t bother spending the 50 cents to do so, any concern over the supposed “cruel punishment” of pain while being executed is easily eliminated with any number of drugs such as morphine or fentanyl. It’s not really an issue. “Do you want to go out with your lights on or off?”

    2. Adding the Atlas Shrugged Amendment to the LP platform could quickly change that jurisprudence. Lookit how the Suprema Corte copied Roe v Wade from the 1972 LP platform! Even women voted Libertarian back then.

  14. Another rousing gathering of Faux Libertarians For The Death Penalty.

  15. Looters pressed Ayn Rand on this and she responded lucidly that using the IRS to rob innocent Americans to give murderers room and board at taxpayer expense was not a preferable alternative. For each, say, amok Saracen terrist, how many taxpayers will be killed during mostly peaceful tax collection by men with guns? Of the survivors who are merely imprisoned, like Mcafee, f’rinstance, for those added taxes, how many are added to the jailbird population the innocent are robbed to support, over and above added killers?

  16. pentobarbital causing severe ‘pain’ is the most specious of arguments. if that is the focus of the anti-capitol punishment group, then they have no argument at all.
    1) pentobarbital has been a safe, effective and painless anesthetic drug. not used so much anymore as there are drugs with better pharmacokinetics; that is, pentobarb is too long acting, and we all want the patient to wake up some time today so we all can go home. This bug for use as an anesthetic, long duration, is certainly a feature when used in massive over-dose quantities associated with death penalty cases.
    2) still quite useful in children as an anti-seizure drug when in status-epilepticus.
    3) that phrase often used in the media about ‘drug induced coma’ when patients need long term sedation. Yeah, that too is sometimes pentobarbital
    Crazy unconstitutional pain? Not so much.

    1. Most commonly three sequential drugs are given, pentobarbital, a paralytic, and potassium chloride. As has happened if the pentobarbital is not properly administered the individual dies slowly of suffocation and the painful effects of KCl.

    2. As an anesthesiologist, I agree with every word gas man just said.
      Pentobarbital has been almost completely replaced in human anesthesia, but I can remember using it.
      Barbiturates are painless to inject, the only pain would be from the potassium chloride of the usual three drug cocktail.

      I have always questioned why we have to make executions look like anesthetics.
      Why not just place the condemned in a sealed room and fill it with a hypoxic gas mixture?
      We know from numerous examples of workers rescued from hypoxic environments, that they feel no symptoms at all until they become dizzy and pass out.
      They breathe normally and walk around until their oxygen levels get too low. If not rescued they will be dead in three minutes or so.
      Why not just put the condemned in a room and fill it with nitrogen gas?
      No I v needed, no pain, easy breathing until unconscious and death.
      And I think Tsarnaev should be executed.

      1. Which is why I said if not properly administered. The people who are doing this are nowhere near your level of expertise.

        There have been incidents of botched executions by lethal injection.

  17. Xanax and a machine-assisted guillotine would probably be the easiest and least painful way to kill people.

  18. Never give the state the power of execution.

  19. If you want a humane execution method that can’t be screwed up (like the electrocution in _The Green Mile_), line a helmet with C4, put it on the condemned, and blow his head completely apart. Absolutely painless and rather messy.

    And that’s been the whole problem with methods of execution – it’s not that the authorities really care about the pain, but since the early 1800’s they’ve abhorred a mess. Over two centuries ago two well-known methods of execution would reliably kill within a few seconds, if not instantly: long-drop hanging and the guillotine. But decapitation sprays arterial blood all over the place, and hanging results in grotesque twitching long after brain death. Long-drop hanging (long enough to guarantee breaking the neck) allegedly also required quite a lot of skill in matching the height of the drop to the neck strength and weight of the condemned – but that was only because they weren’t willing to pull the head right off with a longer drop.

    And so the long search began for execution methods that _looked_ peaceful, never mind that most of these were clearly less humane and required more skill than the tried and true methods of old.

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