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Execution Pause Is Incomplete Step Toward Biden Abolition Pledge

July 2, 2021, 8:51 PM

Attorney General Merrick Garland’s execution moratorium announced on Thursday marks a Trump-era reversal, but it doesn’t eliminate the death penalty as President Joe Biden promised during his 2020 campaign.

Death penalty opponents welcomed the news following the unprecedented string of 13 federal executions carried out late in the Trump administration, while emphasizing how far the U.S. government has to go to deliver on Biden’s abolition pledge.

It’s “a good start, but more will be needed to ensure that future administrations do not have the ability to resurrect this failed machinery of death,” said Miriam Krinsky, executive director of Fair and Just Prosecution.

“If ever there were a time to take decisive steps to bar this process moving forward, that moment is now,” Krinsky said. Among those steps, she said, are commuting federal death sentences, barring federal prosecutors from seeking future death sentences, and dismantling the federal death chamber in Terre Haute, Ind.

There are 46 people on federal death row, according to the Death Penalty Information Center.

“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. She represented Daniel Lewis Lee, one of the federal inmates executed during the Trump administration.

“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,” Friedman said.

Garland said on Thursday that the Justice Department “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. That obligation has special force in capital cases.” He ordered the department to review the execution protocol announced by his predecessor, William Barr, which inmates argued posed unnecessary risks of pain in legal challenges rejected by a divided Supreme Court.

“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 and avoid unnecessary pain and suffering,” Garland said in announcing the review. Before last year, the federal government hadn’t executed anyone in 17 years. Both Garland and Biden took steps supportive of capital punishment earlier in their careers.

While Garland’s review is underway, the Justice Department is still fighting to keep intact or reinstate death sentences, including in the case of Boston Marathon bomber Dzhokhar Tsarnaev, whose appeal is due to be heard by the Supreme Court next term, which begins in October.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

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