From February 22-23, 2021, the Senate Judiciary Committee held a confirmation hearing for Merrick Garland—former Chief Judge of the District of Columbia Circuit Court of Appeals and a 2016 Supreme Court nominee—to become the next U.S. Attorney General (“AG”). Following largely amicable proceedings, the Senate confirmed AG Garland in a 70-30 vote on March 10, 2021.
Over the course of the two-day hearing, Judge Garland expressed his primary goals as AG to be restoring public faith in the integrity of the Justice Department and prosecuting those responsible for the January 6 attack on the Capitol. In his opening statement, AG Garland drew a line connecting his early-career experience overseeing the prosecution of the 1995 Oklahoma City Bombing, which led to the 2001 federal execution of Timothy McVeigh, with future supervision of the Capitol attack prosecution. While AG Garland’s leadership of the team that convicted Mr. McVeigh won him bipartisan admiration both at the time and during the confirmation hearing, it also prompted Senator Leahy (D-VT) to ask about Garland’s current views on the death penalty. When asked if he would reinstate a federal moratorium, AG Garland responded:
I have to say that over those almost 20 years in which the federal death penalty has been paused, I have had a great pause about the death penalty. I am very concerned about the large number of exonerations that have occurred [...] I’m concerned about the increasing almost randomness or arbitrariness of its application when you have so few number of cases. And finally, and very importantly, is the other matter which you raise, which is its disparate impact. The data is clear that it has an enormously disparate impact on Black Americans and members of communities of color, and exonerations also[.]
Senator Cotton (R-AR) furthered this line of questioning by asking if AG Garland regretted the role he played in Mr. McVeigh’s execution. AG Garland responded, “I supported the death penalty at that time for Mr. McVeigh in that individual case. I don’t have any regret.” When asked whether he would seek the death penalty in cases similar to Mr. McVeigh’s, AG Garland responded by acknowledging that he would comply with a federal moratorium on executions were President Biden to institute one.
Despite President Biden’s position as the first U.S. president to openly oppose the death penalty during his presidential campaign, he has yet to take action towards abolishing the federal death penalty while in office. Nevertheless, recent reports have suggested that discussions over directing the Justice Department to refrain from setting new execution dates are ongoing. On January 25, 2021, over 40 members of Congress signed onto a letter calling for Garland to immediately begin working with Congress to “enact legislation and resentence those currently on federal death row.”
At the close of the discussion of the death penalty at the confirmation hearing, Sen. Cotton asked AG Garland whether he would recommend that President Biden commute the sentences of all current federal death row prisoners to life in prison. AG Garland replied, “I’d have to consult with the Administration on such an across-the-board policy. I haven’t thought about that.”