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Death Penalty Moratorium Restored | Insight

Attorney General Merrick Garland brings back a standard practice, raising fresh questions about our justice system.

Yesterday the New York Times reported a story about the Justice Department rescinding requests for the death penalty in seven federal cases. This marks a change in priority from the Trump administration which had originally sought the death penalty for all seven accused.

While President Joe Biden's administration has effectively taken the possibility of capital punishment for these specific cases off the table, Mr. Biden’s Attorney General Merrick Garland also issued a memo on July 1st placing a moratorium on all federal executions. Mr. Garland's memo bases the moratorium on pending investigations into "the risk of pain and suffering" caused by lethal injections, among other things.

The moratorium marks a dramatic break from the Trump administration's extremely high rate of federal executions. In 2020 alone, Mr. Trump oversaw 10 federal executions, the most in any given year since 1902. In all, 13 of the 16 federal executions since 1963 took place during President Trump's time in office.

Mr. Garland's—and by extension Mr. Biden's—new moratorium marks a return to a pre-Trump status quo, which had gone otherwise largely undisturbed since the Kennedy administration. The stark differences in recent approaches to capital punishment, however, suggest that this debate is far from over. Public opinion, for example, is hardly settled on the matter. A majority of the public still favors the death penalty for persons convicted of murder, though support is much higher among Republicans than Democrats.

The debate over capital punishment is critical in a liberal democracy which promises the "unalienable Rights [of] Life, Liberty and the pursuit of Happiness." Of course, we have reached a broad consensus as a society that, in fact, the right to liberty is alienable—that it can be violated or forfeit—when some person's liberty has proven a danger to others'. We abridge certain persons' liberty, the reasoning goes, in order to ensure the protection of the rights of those who do abide by the law.

While arguments pertaining to the death penalty have been formulated and reformulated in myriad ways, here we can limit our consideration to what Mr. Trump’s former Attorney General, William Barr, and Mr. Garland said themselves. In his memo resuming federal executions, Mr. Barr justifies the decision by the fact that Congress has legalized federal capital punishment and that the government owes "victims and their families to carry forward the sentence imposed by our justice system." Mr. Garland, on the other hand, asserts in his memo that inmates are not only entitled to Constitutional rights but also humane treatment.

On liberal democracy's terms—including a presumption of innocence until proven guilty and an acknowledgment of the fallibility of human institutions in enforcing justice—Mr. Barr's position is untenable. The purpose of prison is to protect society from those who have not abided by the terms of its social contract. Unless our prison system is incompetent at keeping inmates out of society, there is no reasoning within the framework of liberal rights which would point toward capital punishment. That Mr. Barr goes outside the framework of liberal rights, by appealing to vicious desire for vengeance, is proof enough of that fact.

Mr. Garland is right that inmates are still entitled to Constitutional rights. The state should only abridge those rights as absolutely necessary for the conservation of others'. However, Mr. Garland’s criticism and the reference to humane treatment go beyond merely the death penalty. A humane existence is perhaps a crucial part of a right to life, and thus the provision of humane treatment shouldn't only be an obligation to those on death row. Instead, the death penalty is far from the only inhumane aspect of America’s carceral system. Whether today’s prisons go far beyond necessary in the curtailment of rights is an important question to consider, if America is to live up to its founding promises.

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