Merrick Garland Suspends Use of the Federal Death Penalty

Attorney General Merrick Garland yesterday announced that he is suspending use of the federal death penalty:

“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,” said Attorney General Garland. “That obligation has special force in capital cases.”

What to make of this announcement, and of its timing?

First, let’s see what else DOJ has to say:

In the last two years, the department made a series of changes to capital case policies and procedures and carried out the first federal executions in nearly two decades between July 2020 and January 2021. That included adopting a new protocol for administering lethal injections at the federal Bureau of Prisons, using the drug pentobarbital. Attorney General Garland’s memorandum directs the Deputy Attorney General to lead a multi-pronged review of these recent policy changes, including:

—  A review coordinated by the Office of Legal Policy of the Addendum to the Federal Execution Protocol, adopted in 2019, which will assess, among other things, the risk of pain and suffering associated with the use of pentobarbital.

—  A review coordinated by the Office of Legal Policy to consider changes to Justice Department regulations made in November 2020 that expanded the permissible methods of execution beyond lethal injection, and authorized the use of state facilities and personnel in federal executions.

—  A review of the Justice Manual’s capital case provisions, including the December 2020 and January 2021 changes to expedite execution of capital sentences.

The Attorney General’s memorandum requires the reviews to include consultations with a wide range of stakeholders including the relevant department components, other federal and state agencies, medical experts and experienced capital counsel, among others.

No federal executions will be scheduled while the reviews are pending.

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The first thought I had about this is that it’s a masterpiece of bad timing.  As noted in my post here, support for the death penalty has been rising over about the last five years after a long period of decline, and is now at 60%  —  a significantly higher share of popular support than Pres. Biden got.  In addition, murder, after reaching an historic low in 2014, has been rising, and its rise this year and last has been especially bad.  Third, a retreat from the death penalty seems particularly odd for an Administration that’s emphasized “equity” for blacks.  Black people are murdered at a rate four times their representation in the general population (54.7% of homicide victims are black, 42.3% are white, see this account).  What’s needed, for blacks in particular, is more accountability for murder not less.

So why this announcement yesterday?  I don’t know for sure, and my contacts inside the Justice Department are scarcely what they were last year.  But here are some possibilities.

First, Joe Biden’s career is marked by very little as much as staying attuned to the predominant thinking in the Democratic Party.  When it was Bill Clinton’s party in the 1990’s, Biden fully supported  —  or at least made like he supported  —  the death penalty, as did Merrick Garland, who in fact led the successful and massively earned capital prosecution of Timothy McVeigh.  But it’s no longer Bill Clinton’s party, and capital punishment is now opposed by a majority of Democrats.  Hence Biden’s current posture.  (For those of you who think one’s view of the death penalty is a matter of principle that wouldn’t change that much between the time you’re in your fifties and the time you’re in your seventies  —  well, look, you members of the Old Fuddy Duddy Crowd can just have a seat in the corner).

Second, Biden has something of a balancing act to do on crime, see my post here.  While according to Pew, 53% of Democrats oppose capital punishment, 46 % support it.  If Biden has his finger to the Democratic wind in deciding where to set sail on this issue, he has to go with the majority without being so rabid as to alienate a sizable minority.  (This would also explain why the announcement was from the Attorney General promulgating a suspension during “study” rather than from Biden himself promulgating commutations).

Third and relatedly, Biden’s administration, to its credit, just filed a first-class SCOTUS brief contesting the First Circuit’s reversal of the death sentence for the Boston Marathon bomber.  See Kent’s post here.  A cynical person might suspect that the timing of yesterday’s announcement was meant as succor to those in the administration, and its allies outside, who were plenty unhappy with the filing of that brief and had been grousing to Garland and White House Counsel’s Office.

Fourth  —  although I think this much less likely  —  the announcement yesterday afternoon could have been goosed by yesterday morning’s major Supreme Court decisions that had Biden and his liberal base all in a twitter.  The Arizona case about rules for voting and the California case about disclosure of non-profit donors were bitter losses for the Left, and have them grumbling that the supposed but often illusory 6-3 conservative majority on the Court might be real after all.  Suspension of the death penalty would be tossing them a bone on an issue that still rings a bell with an important and powerful part of Biden’s base.

P.S.  I’ll add just briefly that one of the stated bases for ordering the federal suspension was “the troubling number of exonerations in capital and other serious cases.”  Apart from the slippery use of the word “exonerations”  —   a slippery use that Kent has discussed more than once  —  this led me to wonder whether the federal government has, at any time in, say, the last hundred years, executed anyone later shown to be factually innocent of the conduct for which he was convicted.  I can’t think of any, although I will stand to be corrected by anyone who might care to chime in with a comment.  In other words, if my memory is correct, the “execution-of-the-innocent” argument is, in the context in which the Attorney General was using it, utter hogwash.