“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,” Merrick Garland said.
According to the message published on the Ministry of Justice website, the previous administration made a series of changes to capital case policies and procedures. The current head of the department directed to lead a multi-pronged review of these recent policy changes, including a review 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.” In addition, they might consider changes to Justice Department regulations made in November 2020 that expanded the permissible methods of execution. How long the review will last is not specified.
The death penalty at the federal level was not carried out in the United States from 2003 to 2020. At the same time, the state authorities could independently appoint and conduct it. The death penalty is currently banned in 23 states.
In 2019, William Barr, then US Attorney General, resumed capital punishment for federal convicted offenders. As a result, last year, for the first time in American history, the number of federal executions in a year exceeded the total for all states. So, all in all, 17 people were executed in the country, of which 10 were executed at the federal level.
Analyzing the decision taken by the new administration, Carolyn Hoyle, Director of the Oxford University Death Penalty Research Unit, drew attention to the fact that Joe Biden became the first US president to make abolition of the federal death penalty part of his presidential campaign platform.
“Even with Trump’s [the 45th US President] increase of federal executions during the last six months of his presidency, the number of death sentences imposed in the US has fallen from over 300 in the mid-1990s to only seventeen in 2020,” the expert reminded.
She stressed that she fully supports the moratorium on the death federal penalty and hopes that it is a precursor to abolition de jure.
“The past decades have witnessed growing international consensus on the limits of state punishment, particularly for those deemed to be vulnerable. Though human rights, especially the right to life, drive an abolitionist agenda, particularly in Europe, they also frame progressive restriction in the use of the death penalty, fair trial procedures for states that retain the death penalty, and the right not to be subjected to cruel, inhuman and degrading punishments. Evidence from the US is clear that executions there are cruel, inhuman and degrading,” Carolyn Hoyle said.
“All the empirical evidence shows that the poor, Black people, and those who are vulnerable by way of poor mental health are more likely to be sentenced to death. Furthermore, innocent people have been sentenced to death and executed even though the US has a complex and reasonably thorough post-conviction review process,” she added.
According to her, the last three decades have witnessed an unprecedented global rate of abolition of the death penalty.
“Of the 193 member states of the United Nations, 107 countries have abolished the death penalty in law for all crimes, and a further eight countries have abolished the death penalty in law for ordinary crimes. Moreover, 72% of all countries in the world have abolished the death penalty in law or practice. Many retentionist states point to the United States in support of their own position and so it is vital that the US leads the way in abolition,” the expert said.
In her opinion, it is clear that if the Federal Death Penalty was abolished, it would be in step with the gradual movement away from capital punishment in the US and in the world.
“Those who commit the most heinous crimes must be punished and their punishments must fit the crime to allow for retribution. However, retribution means proportionate punishments: harsh penalties for serious crimes. It does not mean ‘death for death.’ Long or life prison sentences for murder are proportionate and appropriate. Furthermore they allow for review if new evidence of wrongful conviction comes to light. However, life sentences should be discretionary, not mandatory. There should always be the possibility of review by a parole board, after a suitable period of imprisonment to meet the goals of retribution, as and when the information about the prisoner and his or her risks to society changes. In other words, I do not support the replacement of the death penalty with a mandatory sentences of life in prison without the possibility of parole,” Carolyn Hoyle explained.
The American Bar Association (ABA) Section of Civil Rights and Social Justice leader and CRSJ Death Penalty Committee Chair Ronald Tabak, who is also Pro Bono Counsel at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates, said that he favors a moratorium on federal government executions.
“As was highlighted by the Trump Administration’s executions of 13 death row inmates in its last months in office, the federal death penalty is imposed in an arbitrary and capricious manner. Whether the federal death penalty is sought, secured, and actually carried out in a case is less dependent on how morally culpable a defendant was than on the conduct of the prosecution and the quality or lack thereof of defense counsel,” he said.
“When one analyzes the federal death penalty in light of the ABA's February 1997 policy calling for a moratorium on executions in a jurisdiction if it fails to carry out several specified ABA policies, it is apparent that there should be a moratorium on federal death penalty executions,” Ronald Tabak added.
Moreover, in his opinion, a moratorium on executions should be implemented in all United States jurisdictions that do not abolish capital punishment.
John Quigley, Professor Emeritus, The Ohio State University in Columbus, shard the opinion that the federal moratorium should be emulated by the states.
“In the states, the governors have power to commute death sentences. In a number of states, the governors have commuted the death sentences of all the prisoners under death sentence,” the expert said.
According to him, capital punishment is not an effective penalty for crime.
“Protection of the public can be achieved just as well without capital punishment,” John Quigley stressed.
Meanwhile, Jeffrey Kirchmeier, Professor of Law at the City University of New York (CUNY) School of Law, said the federal moratorium on executions is a good but not enough step.
“A moratorium is merely stopping executions for now, even as people remain on death row and prosecutors may still add people to death row,” he explained.
“President Biden and others have recognized the implementation of the death penalty is riddled with problems. Among such problems, the punishment is not applied fairly or equally, methods of execution can lead to excess suffering, the death penalty offers no benefits to society different from the option of imprisonment, and a government’s act of killing its citizens who no longer pose any danger to society is an outdated and inhumane concept in the twenty-first century,” Jeffrey Kirchmeier said.
From his point of view, government officials should move from just pausing executions “to abolish the federal death penalty, just as a large number of states have done in recent years.”
The expert reminded that worldwide, and across the United States, the trend in recent decades has consistently been for governments to get rid of capital punishment.
“I agree that the trend should continue and that other countries and US states that still use the judicial process for killing citizens should continue to abandon the death penalty. Often, a first step is for a government to impose a moratorium on executions, and then after seeing how unnecessary the punishment is, the government can move to get rid of capital punishment completely,” Jeffrey Kirchmeier said.
In turn, Laura Pitter, Deputy Director – US Program, Human Rights Watch, said that the moratorium is an important step in the right direction.
“But we would urge the administration of US President Joe Biden to go further by commuting all federal death sentences and incentivizing states to follow suit,” the HRW representative said.
According to her, in the US, the death penalty is inevitably plagued with arbitrariness, racial disparities, and error.
“Since 1973, 185 people have been released from death row after later being found innocent. Numerous studies over the past several decades have found persistent patterns of racial disparities in courts imposing the death penalty, with Black people much more likely to receive such verdicts, especially if the victim is white,” HRW Deputy Director said.
In her opinion, the death penalty should be abolished everywhere.
“Human rights law recognizes the inherent dignity and equal and inalienable rights of all people, including even those who have committed terrible crimes. It prohibits torture and other cruel, inhuman, or degrading punishment. Human Rights Watch believes these rights cannot be reconciled with the death penalty, a form of punishment unique in its cruelty and finality,” Laura Pitter concluded.