Attorney General Stays All Federal Executions, Pending Policy Audit

July 2, 2021

By Aara Ramesh

On Thursday, July 1, Attorney General (AG) Merrick B. Garland issued an order staying all federal executions until a comprehensive review of the Department of Justice’s (DOJ) policies and procedures can be completed. This is a sharp about-turn from the department’s policies under William Barr, the previous AG, who himself broke with decades-long traditions regarding the federal government’s approach to the death penalty.

The memo urged the DOJ to engage and consult with a wide variety of stakeholders in examining capital punishment systems, including medical experts and experienced capital counsel. In his statement, the AG said that capital cases merit “special” attention to ensure that all Americans are treated “fairly and humanely,” and in accordance with constitutional provisions and laws. 

AG Garland ordered a review of the Justice Manual’s capital case provisions, particularly the changes made in December 2020 and January 2021 to speed up the carrying out of death sentences. He also asked for an evaluation of the policy implemented by AG Barr in November 2020 that allowed executioners to use methods other than lethal injection in carrying out the sentences. 

The DOJ directive pays special attention to pentobarbital, the drug used in lethal injections at the Bureau of Prisons (BOP). The switch to a single-drug execution method was prompted by pharmaceutical companies increasingly balking at the idea of supplying drugs used to terminate lives, citing ethical and moral concerns. Almost 50 healthcare giants across the world have refused to sell to death row, including Johnson and Johnson, Pfizer, GlaxoSmithKline, and Cardinal Health.

This caused a shortage in the drugs previously used in the cocktail, prompting AG Barr to authorize the use of pentobarbital, despite widespread concerns over how humane a method of execution it really is. Autopsies of executed inmates have shown that pentobarbital “can cause a drowning sensation as it rapidly damages capillaries in the lungs.”

In his remarks, AG Garland drew attention to “serious concerns … 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.”

Public opinion is still largely in favor of the death penalty, with nearly two-thirds of all Americans supporting it for murder convictions. But a large majority is concerned about how the executions are carried out and nearly eight-in-ten adults agree that there is “some risk that an innocent person will be put to death.”

Per the Bureau of Justice Statistics (BJS), there were 65 inmates on death row in federal prisons at the end of 2019, 41% of whom were Black. That number currently stands at 46, according to the Death Penalty Information Center (DPIC), with Black people representing roughly 39% (18 inmates).

Research indicates that race plays a critical role in the application and execution of capital punishment sentences. Historically, data shows that the death penalty has been disproportionately applied to Black defendants. Experts say it was widely used during the periods of slavery, reconstruction, and Jim Crow, as a means to “control the Black population and discourage rebellion.” Lynchings, in particular, became common in the South after the abolishment of slavery, as a way to maintain “social order.”

According to the DPIC, since the 1970s, around 185 people have been wrongfully convicted of a crime and sentenced to death. Of that, the non-profit has identified at least 20 people so far who they say were executed despite there being “strong evidence” of them having been wrongfully convicted. One study estimates that at least 4% of people on death row are actually innocent of the crimes they were convicted for. According to the National Registry of Exonerations, 153 people were exonerated in 2019 and 133 in 2020 after it was proven they were wrongfully convicted.

The first federal execution since 2003 took place in July 2020. In the subsequent six-month period, the BOP carried out a total of 13 executions, with one occurring just days before the inauguration of Joe Biden. This made the Trump administration the most active one in this regard in over 120 years. For reference, according to the BJS, between 1930 (the first year the federal government began tracking such statistics) and 1977, only 33 people were executed. Between 1977 and 2019, that number plummeted to three.

President Biden has a complicated history with the death penalty. An erstwhile supporter of capital punishment, in 1994, then-Senator Biden had a hand in designing laws that expanded the list of federal crimes punishable by death, adding 60 new offenses. According to the Associated Press, later he “conceded the laws disproportionately impacted Black people.”

Last year, however, when he was campaigning to be president, Biden disavowed the death penalty and committed to abolishing it.

Currently, Congress is considering three bills on death penalty reforms at the federal level — two in the House (H.R.97 and H.R.262) and one in the Senate (S.582).

Last month, we published a brief but fairly comprehensive overview of the history of capital punishment in the U.S. and looked at a report published by the BJS on capital punishment at the state and federal levels in 2019.