Attorney General Merrick Garland ordered a moratorium on federal executions pending a review of policies during the Trump administration.

Garland's move is a step toward President Joe Biden's campaign promise to eliminate the federal death penalty.

"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," Garland wrote in a July 1  memo. 

Garland called for a review of policies implemented during the Trump administration that would examine:

• "the risk of pain and suffering associated with the use of pentobarbital," a drug used in executions;

• regulations that expanded the permissible methods of execution beyond lethal injection, and authorized the use of state facilities and personnel in federal executions;

• changes made in the final weeks of the Trump administration to expedite the execution of capital sentences.

"No federal executions will be scheduled during the pendency of these reviews," Garland wrote.

Capital punishment is currently authorized by 27 states, the federal government and the U.S. military, according to the National Conference of State Legislatures. The Trump administration resumed federal executions in 2020 after 17 years.

There are 45 men on federal death row, according to the Federal Capital Habeas Project.

Project director Ruth Friedman said in a statement that the moratorium is a step in the right direction, but not enough.

"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. "President Biden, with the support of the Department of Justice, can and should commute all federal death sentences to address these problems. Otherwise, this moratorium will just leave these intractable issues unremedied and pave the way for another unconscionable bloodbath like we saw last year."

Biden spokesperson Andrew Bates said in a statement that the president is pleased with Garland's memo.

"As the president has made clear, he has significant concerns about the death penalty and how it is implemented, and he believes the Department of Justice should return to its prior practice of not carrying out executions," Bates said.

In June, we rated Biden's promise to eliminate the federal death penalty Stalled after the Justice Department asked the Supreme Court to reverse a decision by a court to vacate the death penalty in the Boston Marathon bomber case. 

Garland's memo imposing a moratorium moves the administration in the direction of Biden's campaign promise again. We rate this promise In the Works.

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The Justice Department asked the Supreme Court to reverse a decision by a court to vacate the death penalty in the Boston bomber case, despite President Joe Biden's campaign promise to eliminate the federal death penalty.

"The court of appeals improperly vacated the capital sentences recommended by the jury in one of the most important terrorism prosecutions in our Nation's history," attorneys for the Justice Department wrote in a June 14 brief to the U.S. Supreme Court.

Dzhokhar Tsarnaev, along with his brother Tamerlan, set off two pressure cooker bombs near the finish line of the Boston Marathon in 2013, killing three people and injuring hundreds. Tamerlan died in a shootout with police days later, while Dzhokhar proceeded to trial. At the direction of then-Attorney General Eric Holder, the United States sought the death penalty. Tsarnaev was convicted in 2015, and the jury recommended the death penalty. 

The U.S. Court of Appeals for the 1st Circuit in 2020 threw out the death penalty decision, concluding that the judge had failed to adequately question jurors about their exposure to pretrial publicity.

"A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished," the court wrote. 

Federal prosecutors during the Trump administration appealed the decision, and in March the Supreme Court agreed to hear the case during its next term, which begins in October. Now the Justice Department under Biden has made it clear that it, too, supports reinstating the death penalty for Tsarnaev.

The jury rendered its decision after considering the evidence including that the defendant detonated a bomb that killed a child and a student, attorneys for the Justice Department argued in its brief: "That determination by 12 conscientious jurors deserves respect and reinstatement by this Court."

We asked White House spokesperson Andrew Bates if the Justice Department filing means that Biden has walked away from his campaign promise to eliminate the federal death penalty. Bates said that the Justice Department has "independence regarding such decisions."

"President Biden has made clear that he has deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of justice and fairness," Bates said. "Prior to the Trump administration, from 2003 until July 2020, not a single execution was carried out by the Department of Justice. The president believes the department should return to its prior practice, and not carry out executions."

In March, White House spokesperson Jen Psaki said that Biden "has grave concerns about whether capital punishment, as currently implemented, is consistent with the values that are fundamental to our sense of justice and fairness." But we could not find any evidence that Biden has taken steps toward eliminating the federal death penalty.

Robert Dunham, executive director of the Death Penalty Information Center, said that Biden faces competing campaign pledges to end the federal death penalty and restore the independence of the Justice Department. 

In the absence of a clear policy on capital punishment, "so far the administration appears to let prosecutors exercise their judgment in individual cases," Dunham said.

During his confirmation hearing for attorney general, Merrick Garland said he had concerns about the death penalty, including its disparate impact on Black Americans. Garland said he expected that the president would put forth a policy on the death penalty.

Republican Sen. Tom Cotton asked Garland whether he would approve seeking the death penalty if there were another case like that of Timothy McVeigh, who bombed a federal court house in 1995.

"I think it depends on what the development of the policy is," Garland replied. "If the president asks or if we develop a policy about moratorium, then it would apply across the board. There's no point in having a policy if you make individual discretionary decisions."

Dunham said it's possible that there will be no death penalty policy during the Biden administration, but he believes the policy is still to be determined. (Dunham's organization does not lobby for or against the death penalty but has criticized the way it has been administered.)

Civil rights advocates including the ACLU wrote a letter in February to Biden urging him to commute the sentences of convicts on federal death row, but the administration did not respond, said Aamra Ahmad, senior legislative counsel at the ACLU.

Ahmad told PolitiFact the organization takes issue with the Justice Department's move. "By seeking to overturn the court of appeals' decision in the Tsarnaev case, the Biden administration is breaking from his promise to work to end the federal death penalty," Ahmad said.

During the campaign, Biden promised to eliminate the federal death penalty and said individuals should instead serve life sentences.

"Since 1973, over 160 individuals in this country have been sentenced to death and were later exonerated," Biden tweeted in July 2019. "Because we can't ensure that we get these cases right every time, we must eliminate the death penalty."

Biden has a few options. If the Justice Department stops seeking the death penalty, that would mean more people would not be added to death row, but it still kicks the can down the road for anyone already on death row. Or Biden could commute the sentences of federal inmates on death row so that they serve life sentences.

Biden could also call on Congress to pass a ban on federal executions, but such bills in the House and Senate have not reached votes. 

Capital punishment is currently authorized in 27 states, the federal government and the U.S. military, according to the National Conference of State Legislatures. The Trump administration resumed federal executions after 17 years.

Biden still has opportunities to take steps toward his promise to end the federal death penalty, but DOJ's action in the Boston bomber case is a move in the opposite direction. For now, we rate this promise Stalled.

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