I applaud the recent decision by Attorney General Merrick Garland to halt federal executions. This is a very welcome first step, but it is not sufficient. I’ll explain why.
After 17 years without a federal execution, the Trump administration rushed through 13 executions in its final year. Why, after such a long time without a federal execution, would Trump’s AG, William Barr, order 13 deaths? Because, as Chief Prosecutor, he had the power to do so.
No executions happen unless a prosecutor decides to seek death. The Supreme Court, in its 1976 Gregg decision that reinstated the death penalty, set up the legal architecture that way. From the trial level on up, if a prosecutor decides not to seek death, nobody dies.
This is why, at its very core, the administration of death in the US is and will always be capricious and flawed. And it’s a core reason why a moratorium on federal executions can never be enough. Much more is needed.
The current federal moratorium was issued “pending review of policies and procedures” including 3 “weighty concerns” that reveal the troubling administration of death: arbitrariness in application; disparate impact on people of color; and the troubling number of exonerations.
Since 1977 a whopping 185 wrongly-convicted people have been fortunate enough to prove the mistakes that sent them to death row and to win their freedom. Since 1976, for every 9 people executed, one death-row prisoner was exonerated. Talk about a broken system!
The flaws revealed in the federal death penalty also exist at the state level, where the self-serving discretion of politically-driven prosecutors could not be more pronounced. A federal moratorium won’t stop state executions, but it might forge a path for them to follow.
And now, at last, we have leadership in the Department of Justice that recognizes just how broken the system is. No, a moratorium alone is not enough. But I couldn’t be more heartened by the thorough investigation of the whole federal death system: policies and procedures.
I’m also heartily encouraged by the comprehensive array of departments and experts mandated to conduct the review: both civil rights and criminal divisions, and the bureau of prisons, which we expect. But, get this…
…also experienced capital counsel, medical experts and other “relevant stakeholders” including “members of the public as appropriate.”
Who knows? Maybe they’ll listen to citizens like me, who have been researching, writing and speaking out to citizens and lawmakers to persuade them to pull the plug on the entire, government-sanctioned, cruel, broken machinery of death. Stay tuned.
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