Attorney General Merrick Garland announced a moratorium on federal executions and a new study of death penalty procedures last week. The move is a small step that fails to make good on President Joe Biden’s campaign promises to end capital punishment. Following on the heels of the Justice Department‘s effort to restore Boston marathon bomber Dzhokhar Tsarnaev’s death sentence, Garland’s announcement sends a muddled message about what the administration wants to do about capital punishment.
Together, these two actions suggest that there is not much courage behind the administration’s rhetorical anti–death penalty commitments. Opponents of the death penalty should expect and demand more while the current Democratic administration is in office.
Recent history cautions that announcing a moratorium is often a substitute for rather than a step toward ending capital punishment. It saves lives for the time it is in place, but a moratorium is easily reversed if and when a pro–death penalty administration comes to power.
The actions of the Biden administration display the same reluctance about the death penalty that characterized the presidency of Barack Obama. It may be poised to repeat the mistake that Obama made when he left capital punishment in place for his successor, President Donald Trump.
When he took office in January 2009, Obama continued the de facto moratorium on federal executions that had been in place since 2003. And, in 2014, following Oklahoma’s botched execution of Clayton Lockett, he directed his attorney general, Eric Holder, to undertake a comprehensive review of how the death penalty was being applied in the United States.
Obama, unlike Biden, never openly embraced abolitionism, even as he acknowledged deep flaws in America’s death penalty system. As the former president explained in 2015, “There are certain crimes that are so beyond the pale that I understand society’s need to express its outrage. I’ve not been opposed to the death penalty in theory, but in practice it’s deeply troubling.”
By the end of his term, the study Obama had commissioned, like many similar studies launched by the federal government, had still not seen the light of day. But that failure mattered little, since the review had largely symbolic value. It was at best a holding action, a signal meant to appease death penalty opponents.
Obama missed the chance to make sure that federal executions, with all the flaws that he recognized, would not resume when he left office. As a result, the system of capital punishment was there for Donald Trump to use. And, showing none of Obama’s reluctance, use it he did.
Moratoria of the kind announced by Garland have a checkered record in advancing the abolitionist cause. They sometimes serve as a way station on the road to abolition. But not always. And the jury is out on what path the new moratorium portends.
A key moment in death penalty moratorium efforts in the United States occurred in 1997 when the American Bar Association, the nation’s largest voluntary association of lawyers and law students, called for a complete halt to executions in the United States. The ABA proclaimed that the death penalty as “currently administered” is not compatible with the values of the U. S. Constitution.
The ABA called “upon each jurisdiction that imposes capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures … intended to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed.”
Note that the language of the ABA resolution was conditional and contingent in its condemnation of death as a punishment. Even as it called for a cessation of executions, the ABA appeared to hold out hope for a process of reform that might bring the death penalty within constitutionally acceptable norms.
Illustrating the stark difference between calling for a moratorium and embracing abolition, the ABA went out of its way to state that it was “taking no position on the death penalty.”
In January 2000, then–Illinois Gov. George Ryan made that state the first in the nation to heed the ABA’s call for a moratorium. As he said at the time, “Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate.”
Ryan believed that the moratorium would allow citizens to get used to having no executions and help them understand that the death penalty affords them no real security.
In Illinois the moratorium turned out to be a major and important first step on that state’s road to abolition. Ryan followed up on it in 2003 when he used his clemency power to pardon or commute the sentences of everyone on the state’s death row. Eight years later, another governor signed legislation abolishing capital punishment and replaced it with life without parole.
In 2007, New Jersey followed the Illinois moratorium-to-abolition playbook, even as that has not been the usual route to ending capital punishment.
The experience of other states indicates that a moratorium may be a substitute for, rather than a step toward, abolition. Oregon in 2011, Pennsylvania in 2015, California in 2019 all announced a halt to executions, but none shows signs of movement to permanently ending capital punishment.
And Maryland offers another stark reminder of the sometimes transient quality of death penalty moratoria. In 2002, Democratic Gov. Parris Glendening declared a moratorium on executions. Eight months later, it was lifted by his successor, Republican Gov. Robert Ehrlich, who would go on to preside over two executions during his term in office.
This history further cautions that Garland’s announcement may not be a signal that abolition of the federal death penalty is on the horizon.
Added to that, the attorney general’s call for yet another series of policy reviews has a depressingly familiar ring to it. Do we really need another study to document the death penalty’s brutality and its crippling flaws?
This purportedly abolitionist president and his attorney general should act to make sure that no one again faces a federal death penalty. Biden should now use his executive power to empty the federal death row by commuting the sentences of the 50 people currently being held there.
Commutation, not a moratorium, is the only way to ensure that executions do not return the next time someone like Trump is in office.