Garland’s Cynical Rescission of the Death Penalty Protocol

M errick Garland continues his bid to outrank Eric Holder as the most partisan attorney general in American history. On Wednesday, he rescinded the federal death penalty protocol — essentially, just as President-elect Donald Trump is about to take office, and four years after Garland could have taken this cynical action if he truly believed it was warranted.

Garland issued a memorandum to the Bureau of Prisons in which he reported that the Justice Department’s Office of Legal Policy determined that the administration of phenobarbital is . . . problematic. The federal government’s execution protocol, which has not been invoked since President Biden took office in 2021, when Garland imposed a death penalty moratorium, calls for the lethal injection of phenobarbital sodium. Garland claims that such injections could lead to a degree of pain and suffering that might violate what he takes to be the government’s “responsibility to treat individuals humanely and avoid unnecessary pain and suffering.”

The attorney general must couch his eleventh-hour conversion in these vagaries because he knows that, in its 2020 Barr v. Lee decision, the Supreme Court rejected the contention that executions should be halted because some medical experts opine that phenobarbital might cause painful pulmonary edema. Garland is thus reduced to rationalizing that, even though the federal execution method does not violate the Eighth Amendment or meet the Court’s standard for judicial intervention, the Justice Department is still obliged “to raise important questions.”

Pretty compelling, no?

I have observed a number of times that the Biden-Harris administration and its attorney general play a political game with capital punishment. They know that it is endorsed by the broad public but anathema to the progressives who call the tune in the Democratic Party. So, on the one hand, they tell the public they are responsible custodians of death row who defend capital punishment in worthy cases (as the DOJ successfully did in the Supreme Court when a federal appeals court reversed the jury’s death penalty verdict in Boston Marathon bomber Dzhokhar Tsarnaev’s case); on the other hand, they wink at their progressive political base, assuring that there’s no need to worry because no one is actually going to be executed.

This of course is why Biden waited until after the 2024 election to grant clemency to 37 death row inmates — undermining Congress’s laws, eviscerating the work of juries and judges who lawfully adjudicated those cases, and scoffing at the suffering of families whose loved ones were brutally killed. (See our editorial urging Biden not to do what he did.) This corrupt use of the pardon power for the benefit of heinous murderers — this foisting of the Left’s policy preference on an unwilling public — would have cost Democrats dearly at the ballot box if they’d been transparent about it during the campaign.

And it gets worse. Less than a month ago, after national outrage was provoked by the cold-blooded killing of Brian Thompson, a health insurance executive shot from behind on a Manhattan street, Garland’s Justice Department quickly filed capital murder charges against Luigi Mangione. Even as the charges were announced in the DOJ’s chest-beating press release, Garland knew that there could be no death penalty under his moratorium, and he had to know both that the administration was about to pardon a slew of death row inmates and that he would soon endeavor to make executions illegal by eradicating the protocol.

Remember, moreover, that in pardoning 37 death row inmates, Biden preserved the death sentences of three defendants (including Tsarnaev) whose capital cases were brought or defended by Biden’s two administrations (his own and President Obama’s, in which Biden served as vice president). Biden and Garland struggled to come up with some coherent rationale for why their three death penalty cases were righteous while all the others “raised important questions” about the humaneness of capital punishment. But the only rational explanation is political: Basically, we only did our death cases because the voters would have hammered us if we didn’t, but since our hearts are pure, how could we cop to being inhumane?

And now, as they saunter out the door with no further concerns about political accountability, Garland and Biden tell us it was all inhumane after all . . . except they can’t say it is unconstitutional or flouts American tradition (which for centuries abided less humane methods of capital punishment).

The driver of all this legerdemain is partisan politics: Garland is trying to make it difficult for the incoming Trump administration to prosecute death penalty cases — and even to execute the three inmates who Biden told us, just a few days ago, deserved capital punishment.

As Garland well knows, in future cases — including that of Mangione, in which he approved capital charges — defense lawyers and progressive judges will use his invalidation of the execution protocol as a basis to claim that the death penalty is sadistic, illegal, and potentially unconstitutional. And mind you, in this exercise of slavish adherence to Soros-approved progressive nonenforcement pieties, the beneficiaries will as always be hardened criminals.

To be sure, federal capital sentences are rare — under current jurisprudence, the death penalty is only imposed for murder, and the vast majority of murder prosecutions are done in the state court systems. Thirteen federal offenders were executed in Trump’s first term (hence the Supreme Court’s afore-described Lee case, involving murderers of children); prior to that, there had been no executions in 17 years — not since the first Bush 43 term, after which Obama’s AG, like Biden’s, imposed a moratorium rationalized by baseless concerns about constitutionality (while nevertheless charging Tsarnaev with capital murder).

So why expend all these resources on internal DOJ and academic studies, litigation, and debate? At stake, after all, is only a minuscule fraction of the approximately 20,000 murders annually committed in the United States. Why not just content ourselves with sentences of life imprisonment without parole for the worst offenders, chalk up the steep expense of incarcerating murderers for decades as a cost of doing humaneness, and end the waste of time and effort?

Because if you don’t have a death penalty, you won’t have sentences of life imprisonment without parole.

Understand, progressives are nearly as offended by imprisonment — at least lengthy incarceration — as they are by death sentences. If the death penalty were ever repealed, progressives would immediately mount a campaign against sentences of life imprisonment, arguing that these, too, are inhumane. Gradually, congressional Democrats would push to reduce the maximum federal sentence to some term of years — say, 25 or 30 for starters, to be whittled down from there. Or, à la Europe, the federal system would maintain a nominal “life imprisonment” sentence, but defendants would become eligible for parole after a dozen or so years.

For now, progressive Democrats support sentences of life imprisonment without parole only because it is a cosmetically reasonable position to take in opposing capital punishment. Once their monstrous portrayal of grisly federal death chambers has accomplished its objective of repealing the ultimate penalty, they’d simply step up their demagoguing of our supposedly barbaric “carceral state.”

That’s at least four years away. In the meantime, strap in for the Trump years, in which the DOJ will likely undertake to execute the few murderers who Biden and Garland said deserve to die, while Biden, Garland, and other Democrats counter that executing them would transgress “our values” — by which they mean their values: solicitude for the predators, not the victims.