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July 11, 2021 Federal Government

DOJ Takes Disjointed Action on Federal Death Penalty

By Matt Propper, DPRP Intern

After months of relative silence from the Biden Administration on the death penalty, the U.S. Department of Justice (DOJ) made three major moves, thrusting the issue into the spotlight and raising questions about President Joe Biden’s willingness to end the practice. As a candidate, Biden repeatedly denounced the death penalty and campaigned on ending federal capital punishment.

On July 1st, Attorney General Merrick Garland imposed a moratorium on federal executions pending a review of the practice. In his memo announcing the moratorium, Garland emphasized 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 the “arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations.” Garland specified that the review will focus on three policies and procedures issued by former Attorney General William Barr last year that paved the way for the Trump Administration to carry out 13 executions in 6 months—ending a streak of 17 years without a federal execution. Garland tasked Deputy Attorney General Lisa O’Monaco with supervising the effort.

The first Trump-era policy targeted for review, enacted in July 2019, “provided for the use of a single drug, pentobarbital sodium” in lethal injections, despite concerns from medical professionals about its potential to cause pain and suffering. The second and third highlighted policies, implemented in the last months of 2020, “provide[ed] the government with greater flexibility to conduct executions” and made changes to “expedite the execution of capital punishment.”

Although the moratorium halts federal executions, it does not prevent federal prosecutors from continuing to seek the death penalty or preclude a future administration from simply re-starting executions, as the Trump Administration did when it lifted former President Barack Obama’s existing moratorium.

Before the decision to halt executions, Garland had announced an official review of the federal death penalty. On June 22nd, about one week prior to the moratorium announcement, Garland stated that he was “personally reviewing” the DOJ death penalty policies and would issue a statement when his review is complete. Garland did not offer a timeline. In his remarks, Garland specifically mentioned the racial bias inherent in the death penalty's application. “I said at my confirmation hearing that I have concerns about the death penalty...and I’m concerned about disparate impact on Black Americans.”

Garland’s June 22nd announcement came on the heels of another DOJ decision regarding the death penalty. On June 15th, the DOJ asked the U.S. Supreme Court to reinstate the death penalty for Dzhokhar Tsarnaev, who was convicted of the 2013 Boston Marathon bombing. Asked to reconcile the DOJ’s decision with President Biden’s condemnation of the death penalty, the White House explained that the DOJ makes these decisions independently—but added that President Biden still opposes carrying out any federal executions.

In its brief, the DOJ urged the Supreme Court to reverse a decision by the U.S. Court of Appeals for the First Circuit that vacated the capital sentences recommended by the jury at trial. In its opinion, the First Circuit concluded that the jury was tainted by the immense publicity of the case, and the court’s refusal to move venue out of Boston, where the crime occurred, was unduly prejudicial to the defense. “With a jury so intensely impacted by the charged crimes, and so exposed to inflammatory pretrial publicity—including reports detailing the extreme anguish of their neighbors and repeated calls for Tsarnaev to be sentenced to death—I cannot say with any degree of certainty that the jurors did not possess a ‘predilection toward that penalty.’”

The Government’s brief to the Supreme Court argued that the First Circuit overstepped its bounds by bucking precedent and failing to adequately consider the steps taken by the district court judge to limit pre-trial publicity and screen jurors who had been exposed to a large degree of coverage regarding the case. For those reasons, the DOJ asserted, “The court of appeals improperly vacated the capital sentences recommended by the jury in one of the most important terrorism prosecutions in our Nation’s history.”

The Trump Administration commenced the Supreme Court proceedings by filing a petition for a writ of certiorari in October of last year asking the Supreme Court to reinstate the death penalty for Tsarnaev. The Supreme Court granted the petition for a writ of certiorari on March 22nd. Until the DOJ’s decision earlier this month, it was unclear with the change of administration whether the DOJ would continue to press for a death sentence in this case. Given President Biden’s public statements opposing the death penalty on the campaign trail, advocates had hoped that the DOJ would instead seek to settle the case for a sentence of life without parole. Arguments are expected next term.

The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.