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.