Biden’s team seemingly backs away from his opposition to the death penalty by engaging in procedural misdirection

On July 1, 2021, the Department of Justice through 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 announcement continued as follows:

“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.”

In an article entitled “Biden’s Death Penalty Moratorium | City Journal (city-journal.org), the author, Charles Fain Lehman, notes the following about the memorandum:

“The stated reason for the hold is a review of Barr’s policy changes, particularly the risk of pain and suffering created by the DOJ’s switch to using the barbiturate pentobarbital for its lethal injections. The drug has been used in over 100 executions, and capital offenders routinely request it as a less painful alternative to other execution methods; the Supreme Court and dozens of inferior courts have explicitly said its use does not contravene the Eighth Amendment.

But the aim of the moratorium is not actually to review whether or not pentobarbital is a permissible method of execution. Such a review, if it happens, will almost certainly drag on as long as a Democrat holds the White House; it is a pretext. Rather, Garland’s goal is a backdoor death-penalty abolition, carried out under false pretenses because he knows how unpopular a formal end to federal capital punishment would be”.

The stated reason for the hold is a review of Barr’s policy changes, particularly the risk of pain and suffering created by the DOJ’s switch to using the barbiturate pentobarbital for its lethal injections. The drug has been used in over 100 executions, and capital offenders routinely request it as a less painful alternative to other execution methods; the Supreme Court and dozens of inferior courts have explicitly said its use does not contravene the Eighth Amendment.

But the aim of the moratorium is not actually to review whether or not pentobarbital is a permissible method of execution. Such a review, if it happens, will almost certainly drag on as long as a Democrat holds the White House; it is a pretext. Rather, Garland’s goal is a backdoor death-penalty abolition, carried out under false pretenses because he knows how unpopular a formal end to federal capital punishment would be.”

The end result, Lehman contends, is:

“[C]onvicted murderers will continue to languish on death row, where the average time between sentencing and execution has now risen to 22 years thanks to abolitionist obstructionism. Those granted reprieve by Biden’s moratorium includes such people as white supremacist and domestic terrorist Dylann Roof, who shot and murdered nine black men and women at the Emmanuel AME Church in Charleston, South Carolina; and Dzhokhar Tsarnaev, the still-living Boston Marathon bomber who is responsible for three deaths and over 260 injuries.

Most Americans believe that deranged, unrepentant murderers like these deserve to pay the ultimate price. The Biden administration apparently disagrees, but obscures its judgment behind proceduralist misdirection.”

OUR POSITION

Although we agree that the death penalty should not be implemented (on cruel and unusual grounds), except in those times where the defendant competently agrees that the ultimate punishment should be carried out, there is merit to Lehman’s contentions.

Biden campaigned on his opposition to the death penalty. However, Donald Trump supported the death penalty. The Biden team recognizes that opposition to the death penalty is now politically unpopular and has resorted to giving the issue this illusory attention. Sooner or later, Biden will run out of passes.  His liberal base, if they care about abolishing the death penalty, should call him out on this.

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