Attorney General Halts Federal Executions to Review Policies and Procedures


The Justice Department announced yesterday that no federal executions will be scheduled while the department reviews the federal execution protocol and manner of execution regulations.

In a memorandum to Justice Department lawyers, Attorney General Merrick Garland explained that the department’s “commitment to fairness and humane treatment” in the administration of the death penalty requires it to evaluate recent changes to its policies and procedures in capital cases.

“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,” the attorney general wrote. “That obligation has special force in capital cases.”

“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,” he added.

Last year, the Trump administration carried out the first federal executions in nearly two decades. Thirteen people were executed, including an unprecedented number of federal killings in the last days of Trump’s single term. 

The cases demonstrated a rush to execute without meaningful judicial review of “grave, fact-heavy challenges” to lethal injection and despite opposition from victims’ families, judges, and prosecutors.

Troubling and important legal questions about Native American tribal sovereignty, racial discrimination, and the constitutionality of executing people with severe mental illness or intellectual disability were raised but ultimately disregarded. Federal prosecutors persuaded the Supreme Court to reverse lower court stays of execution in the middle of the night, allowing executions to go forward even as they caused Covid-19 outbreaks.

Attorney General Garland acknowledged in yesterday’s memo that the Justice Department had changed its policies to expedite executions in December and January. He ordered the Deputy Attorney General to review what he called a “departure from longstanding practice.” 

The memo also directs the department to suspend the federal execution protocol that was adopted in July 2019 and, the attorney general wrote, “raise[s] important questions about our responsibility to treat individuals humanely and avoid unnecessary pain and suffering.”

President Biden pledged to pass legislation to end the federal death penalty, but no such bills have been introduced.

“A moratorium on federal executions is one step in the right direction, but it is not enough,” said Ruth Friedman, director of the Federal Capital Habeas Project. “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.”

She urged the president to commute all federal death sentences, warning that a moratorium “will just leave these intractable issues unremedied and pave the way for another unconscionable bloodbath like we saw last year.”