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July 25, 2021

DOJ Pauses Federal Executions Pending Review

On July 1, 2021, U.S. Attorney General Merrick Garland announced a halt to any further federal executions pending a review of policies.

On July 1, 2021, U.S. Attorney General Merrick Garland announced a halt to any further federal executions pending a review of policies.

During a six-month period from July 2020 to January 2021, 13 federal death row prisoners were executed—restarting a practice that had been on hold since 2003 and more than quadrupling the total number of federal executions in the modern death-penalty era. On July 1, 2021, U.S. Attorney General Merrick Garland announced a halt to any further federal executions pending a review of policies enacted by the Trump Administration that set the groundwork for executions to be carried out. In his memo announcing the moratorium, Garland explained that “the [Justice] Department must take care to scrupulously maintain our commitment to fairness and humane treatment in the administration of existing federal laws governing capital sentences,” pointing to concerns that have been raised about “arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations.”

The first policy targeted for review, adopted in July 2019, created a single-drug lethal injection protocol using pentobarbital sodium. Death row prisoners subsequently brought a series of legal challenges to the protocol, claiming that the drug has the potential to cause unconstitutional pain and suffering during the execution process. Garland noted that even though the Supreme Court ultimately permitted executions using this drug to proceed, a “risk need not meet the Court's high threshold for such relief, or violate the Eighth Amendment, to raise important questions about our responsibility to treat individuals humanely.”

The second policy under review provides additional flexibility to federal officials to carry out executions using any execution method permitted by the state where the sentence was imposed. In recent years, several death-penalty states have explored alternatives to lethal injection as an execution method, citing difficulties purchasing execution drugs from commercial manufacturers. These alternative methods include the electric chair, firing squad, nitrogen hypoxia, and cyanide gas.

The final area of review relates to the Trump Administration’s changes to the Department of Justice policies for attorneys who defend capital convictions. Two provisions created in late 2020 and early 2021 both focus on expediting capital cases. One limits the ability of government attorneys to grant consent—or not object—to a variety of requests from the prisoner that might extend the duration of a capital appeals, such as setting a briefing schedule longer than 12 months or seeking review from a federal circuit court. The second provision requires the setting of an execution date promptly after ordinary post-conviction appeals are exhausted and permits setting an execution date “even before all legal or operational impediments to the execution are cleared.” A.G. Garland characterized both policies as a “departure from longstanding practice.”

Although the announcement halts federal executions while the policies are under review, it does not remove any prisoners from death row or prevent federal prosecutors from continuing to prosecute capital cases, nor does it preclude the possibility of resuming executions under the current or a future administration.

While the ABA does not oppose the death penalty on moral or constitutional grounds, the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases set forth a national standard of practice for the defense of capital cases to ensure high-quality legal representation for all persons facing or convicted of death penalty offenses, and the association frequently advocates for the strict application of those guidelines in state and federal capital cases.