Attorney General Garland Puts Hold on Federal Executions

Attorney General Merrick B. Garland Imposes a Moratorium on Federal Executions; Orders Review of Policies and Procedures

Today, Attorney General Merrick B. Garland issued a memorandum imposing a moratorium on federal executions while a review of the Justice Department’s policies and procedures is pending.

“The Department of Justice 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,” said Attorney General Garland. “That obligation has special force in capital cases.”

In the last two years, the department made a series of changes to capital case policies and procedures and carried out the first federal executions in nearly two decades between July 2020 and January 2021. That included adopting a new protocol for administering lethal injections at the federal Bureau of Prisons, using the drug pentobarbital. Attorney General Garland’s memorandum directs the Deputy Attorney General to lead a multi-pronged review of these recent policy changes, including:

• A review coordinated by the Office of Legal Policy of the Addendum to the Federal Execution Protocol, adopted in 2019, which will assess, among other things, the risk of pain and suffering associated with the use of pentobarbital.
• A review coordinated by the Office of Legal Policy to consider changes to Justice Department regulations made in November 2020 that expanded the permissible methods of execution beyond lethal injection, and authorized the use of state facilities and personnel in federal executions.
• A review of the Justice Manual’s capital case provisions, including the December 2020 and January 2021 changes to expedite execution of capital sentences.

The Attorney General’s memorandum requires the reviews to include consultations with a wide range of stakeholders including the relevant department components, other federal and state agencies, medical experts and experienced capital counsel, among others.

No federal executions will be scheduled while the reviews are pending.

The Department o f Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws ofthe United States, but is also treated fairly and humanely. That obligation has special force in capital cases. Serious concerns have been raised about the continued use ofthe death penalty across the country, including arbitrariness in its application, disparate impact on people ofcolor, and the troubling number of exonerations in capital and other serious cases. Those weighty concerns deserve careful study and evaluation by lawmakers. In the meantime, the Department must take care to scrupulously maintain our commitment to fairness and humane treatment in the administration ofexisting federal laws governing capital sentences.

In the last two years, the Department made a series o f changes to its policies and procedures in this area. Those changes were accompanied by the first federal executions in nearly two decades. To ensure that the Department’s policies and procedures are consistent with the principles articulated in this memorandum, I am asking the Deputy Attorney General to undertake and supervise the following reviews.

No federal executions will be scheduled during the pendency ofthese reviews.

Subject: Moratorium on Federal Executions Pending Page2 Review of Policies and Procedures

I am asking the Office of Legal Policy, under the supervision of the Deputy Attorney General, to coordinate that review. The review should include consultation with all relevant Department components, including the Bureau o f Justice Statistics, Bureau o f Prisons, Drug Enforcement Administration, Civil Division, Civil Rights Division, Criminal Division, National Institute ofJustice, and U.S. Marshals Service; other state and federal agencies, including the Department of Health and Human Services; medical experts; experienced capital counsel; and other relevant stakeholders, including members of the public, as appropriate. The review should assess the risk ofpain and suffering associated with the use ofpentobarbital. It may also address any other relevant portion ofthe Addendum.

B. Review ofthe Manner ofExecution Regulations. On November 27, 2020, the Department amended its regulations governing the manner of federal executions “to provide the Federal Government with greater flexibility to conduct executions in any manner authorized by” the Federal Death Penalty Act, 18 U.S.C. § 3596. 85 Fed. Reg. 75,846, 75,847 (Nov. 27, 2020). The amendments, which became effective on December 28, 2020, expanded the permissible methods of execution beyond lethal injection to “any other manner prescribed by the law of the State in which the sentence was imposed.” Id. at 75,854. The amendments also authorized the use o f state facilities and personnel in federal executions and made a number o f procedural changes, including granting the Attorney General authority to make exceptions to the regulations and to delegate duties within the Department. See id. at 75,854-75,855.

I have concluded that these matters warrant further consideration. I am therefore asking the Office of Legal Policy, under the supervision of the Deputy Attorney General, to coordinate a review of the November 2020 amendments to consider whether and to what extent those amendments should be modified or rescinded, and to consider any other changes that should be madetotheregulations. ThatreviewshouldincludeappropriateconsultationasdetailedinPart A above.