The U.S. Department of Justice has announced its decision to resume the use of the federal death penalty, marking a significant shift in policy. This decision comes on the heels of the “Restoring and Strengthening the Federal Death Penalty” report, which criticized the moratorium on federal executions ordered by Attorney General Merrick Garland in July 2021. Garland had expressed concerns about the federal lethal injection protocol, particularly the use of pentobarbital, citing potential for “unnecessary pain and suffering.” In response, President Biden had commuted the sentences of 37 prisoners, leaving only three on federal death row (JURIST).
Acting Attorney General Todd Blanche has stated that the previous administration failed to uphold its duty by not pursuing capital punishment against the most dangerous criminals. The new report argues that Garland’s moratorium applied an arbitrary standard inconsistent with the Eighth Amendment. Scientific research cited supports the use of pentobarbital in executions, claiming it meets the Eighth Amendment’s compliance test as established in Bucklew v. Precythe (2019). This decision aligns with a broader perspective that the often contentious practice of capital punishment has legitimate enforcement (NBC News).
Despite this renewed federal stance, capital punishment remains banned in all 27 European Union countries, which impacts the availability of drugs for lethal injections due to strict EU export regulations. Many American drug manufacturers also refuse to supply these drugs, leading the DOJ to suggest alternative methods such as firing squads, electrocution, or nitrogen asphyxiation if the necessary drugs are unavailable. Notably, the federal government has never used the firing squad, though five states permit this method (Death Penalty Information Center).
The DOJ has instructed the Bureau of Prisons to either expand or build new facilities to accommodate the expected increase in executions. Furthermore, the department is contemplating measures to streamline the federal habeas review process in capital cases and enforce rules that would restrict clemency petitions until after certain court decisions. This announcement may lead to further national debate over the ethical and legal implications of the death penalty in the United States.