Merrick Garland says he’s concerned about ‘randomness’ of death penalty and its ‘disparate’ impact on Black Americans

Merrick Garland
Demetrius Freeman/Getty Images

  • Merrick Garland in his confirmation hearing expressed serious concerns about the death penalty. 
  • Garland on Monday cited the “disparate” impact of capital punishment on Black Americans. 
  • Garland said it’s “the most terrible thing” if someone is executed for a crime they didn’t commit.
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President Joe Biden’s nominee for attorney general, Judge Merrick Garland, on Monday expressed serious concerns about the death penalty in the US and the glaring racial disparities in the implementation of capital punishment. 

“I have had a great pause about the death penalty. I am very concerned about the large number of exonerations that have occurred through DNA evidence and otherwise, not only in death penalty convictions, but also in other convictions. I think it’s a terrible thing that occurs when somebody is convicted of a crime that they did not commit,” Garland said during his Senate confirmation hearing. 

Garland conveyed consternation about the “increasing randomness, almost arbitrariness” of the use of the death penalty.

Since 1973, 185 people have been exonerated after being wrongfully convicted and sentenced to death, according to the Death Penalty Information Center (DPIC).

“The data is clear that it has been enormously disparate impact on Black Americans and members of communities of color, and exonerations also that something like half of the exonerations had to do with Black men. So all of this has given me pause,” Garland added. 

To Garland’s point, Black Americans make up about 13% of the total US population, but comprised 42% of the death row population in 2020. 

A September 2020 DPIC report also found major historic racial disparities regarding the death penalty. The report, for example, said: “Since executions resumed in 1977, 295 African-Americans defendants have been executed for the murder of a white victim, while only 21 white defendants have been executed for the murder of an African-American victim.”

Biden is the first sitting US president to openly oppose capital punishment, and during his campaign pledged to end the death penalty at the federal level. The president’s position on this issue marks a drastic shift from the Trump administration, during which a record number of federal executions were carried out. 

The 13th and last federal execution to occur under President Donald Trump took place just five days before Biden was inaugurated. Trump broke a 17-year hiatus in federal executions, and was the first president in 130 years to see executions carried out during a presidential lame duck period. He oversaw more executions than any president in 120 years. 

More than two-thirds of the world’s countries have abolished the death penalty in law or practice, according to Amnesty International. Biden is under mounting pressure from civil rights groups and progressives in Congress to follow their lead. 

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Virginia has moved closer to abolishing the death penalty in a watershed moment for the Southern state

Virginia state capitol
The Virginia State Capitol in Richmond.

With a key legislative vote on Friday, Virginia is on the cusp of abolishing the death penalty, a watershed moment for a state that long embraced the practice as an anti-crime deterrent.

The Democratic-controlled House of Delegates voted 57-41 to end the death penalty, with 54 Democrats and three Republicans backing the measure, according to The Richmond Times-Dispatch.

On Wednesday, the Democratic-controlled state Senate voted on a 21-17 party-line vote to approve a similar measure.

With Democratic Gov. Ralph Northam in support of an abolition bill, Virginia is set to join 22 other states that have ended capital punishment and become the first Southern state to end the practice.

Larry Sabato, a longtime political analyst at the University of Virginia, told The Richmond Times-Dispatch that for decades, such an action would have been difficult to imagine.

“In the 20th century, few would have thought this was likely to happen at all, much less that Virginia would be the first in the South to eliminate capital punishment,” he said. “It shows dramatically how different the new Virginia is from the old.”

Virginia has executed nearly 1,400 people since 1608 – with 113 of the killings occuring after the Supreme Court paved the way for executions to restart in 1976 as a result of Gregg v. Georgia, according to the Death Penalty Information Center.

Read more: Inside the 7-minute virtual workouts the Biden transition team used to stay connected as staffers prepared to demolish Trump’s policies

Democratic state Delegate Mike Mullin, a prosecutor who introduced the House legislation, said having a death penalty creates the risk of errors.

“There are many arguments for why we should abolish the death penalty,” he said. “These arguments touch on everything from the moral implications of the death penalty, to the racial bias in how it is applied, to its ineffectiveness, to the extraordinary cost.”

He added: “Perhaps the strongest argument for abolishing the death penalty is that a justice system without the death penalty allows us the possibility of being wrong.”

In 1985, Earl Washington Jr. came within days of being executed for a rape and murder that he did not commit.

After spending 17 years in prison, with many of them on death row, Washington was released in 2001 after more extensive DNA testing, unavailable in earlier years, proved his innocence.

Republican Delegate Jason Miyares, a former prosecutor, defended the use of the death penalty for “worst of the worst” murderers and said that the victims and their loved ones have been largely sidelined in the debate.

“If there is one word to describe what happened to these victims, it is just cruelty – unimaginable cruelty on a scale that’s hard to even process,” he said. “They died with sheer terror on their hearts with people often taunting them.” 

He added: “It’s not vengeance, it’s justice.”

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Over 3 dozen Democrats lawmakers urge Biden to commute the sentences of all remaining federal death row inmates

Joe Biden White House
President Joe Biden speaks at the White House on January 22, 2021.

  • Thirty-seven lawmakers asked President Joe Biden to commute the sentences of all remaining federal death row inmates.
  • The effort was led by Reps. Ayanna Pressley of Massachusetts and Cori Bush of Missouri.
  • Biden is opposed to the death penalty and campaigned on ending the practice.
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Over three dozen lawmakers, led by Democratic Reps. Ayanna Pressley of Massachusetts and Cori Bush of Missouri, sent a letter to President Joe Biden on Friday asking him to commute the sentences of all remaining federal death row inmates and “recommit to the tradition of due process, mercy, and judicial clemency when it comes to matters related to the criminal legal system.”

The letter included co-signers like Reps. Alexandria Ocasio-Cortez of New York, Karen Bass of California, Rashida Tlaib of Michigan, and Jamaal Bowman of New York, where they expressed “grave concerns regarding the death penalty” and criticized the pace of executions under President Donald Trump.

“Night after night in the final days of the Trump administration, the American people bore witness to the cruel and heinous practice of executions,” they wrote. “Americans from all walks of life appealed to the moral conscience of judges and the President to save the lives of those on death row. To no avail.”

Under the Trump administration, there were 13 federal executions. Before federal executions resumed in 2020, the last federal execution was carried out in 2003.

Read more: Trump tested the Constitution and shredded traditions. Biden and the Democrats have big plans of their own about what to do next.

The signatories urged Biden “to take swift, decisive action” in commuting the sentences of death row inmates and accused Trump of enabling “carnage and unrestrained violence that must be rectified immediately.”

“This moment demands a series of meaningful actions to ensure that no President can authorize the killing of Americans through the death penalty,” they wrote.

Biden, who opposes the death penalty, instead favors inmates serving life sentences without the possibility of parole or probation.

When asked about Biden’s commitment to ending the federal death penalty during a Wednesday press briefing, White House press secretary Jen Psaki didn’t have updates on any immediate plans of action.

“The President, as you know, has stated his opposition to the death penalty in the past,” she said. “He remains – that remains his view. I don’t have anything more for you in terms of future actions or mechanisms, though.”

In the letter, the signatories remained hopeful that they could partner with Biden in halting future executions.

“We look forward to working with your administration to enact just and restorative policies that will meaningfully transform our criminal legal system for the better,” they wrote. “By exercising your clemency power, you can ensure that there would be no one left on death row to kill.”

They added: “Given the historic nature of your administration, this would be an unprecedented but necessary –  action to reverse systemic injustices and restore America’s moral standing.

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Federal government executes Dustin Higgs, the 13th person to be killed since July. Justice Sonia Sotomayor writes scathing dissent: ‘This is not justice.’

supreme court
Supreme Court Chief Justice John Roberts, Supreme Court Associate Justice Anthony Kennedy, Supreme Court Associate Justice Stephen Breyer, Supreme Court Associate Justice Sonia Sotomayor and Supreme Court Associate Justice Elena Kagan look on as U.S. President Donald Trump addresses a joint session of the U.S. Congress on February 28, 2017 in the House chamber of the U.S. Capitol in Washington, DC. Trump’s first address to Congress focused on national security, tax and regulatory reform, the economy, and healthcare.

  • Late Friday, the Supreme Court voted to move forward with the execution of Dustin Higgs, who became the thirteenth person to be killed by the federal government since July.
  • Justice Sonia Sotomayor has consistently dissented against the accelerated push for federal executions at the direction of the Justice Department and wrote a scathing dissent breaking down the concerted strategy to rush executions.
  • “The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours,” Sotomayor said. “Very few of these decisions offered any public explanation for their rationale. This is not justice.”
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The Supreme Court executed Dustin Higgs late Friday, making Higgs the thirteenth person to be killed by the federal government since July.

Higgs, who had contracted COVID-19 in prison, was sentenced to death row in 2001. A petition to stop Higg’s execution amassed more than 1.5 million signatures ahead of Friday. 

In July, the US Department of Justice ended a 17-year pause on federal executions, at Attorney General William Barr’s direction. Justice Sonia Sotomayor has consistently dissented against the Trump administration’s fast-tracked executions of each individual.

In her latest dissent, Sotomayor described the recent surge in federal executions and the human toll behind it. Justices Breyer and Kagan joined Sotomayor in dissenting.

“After seventeen years without a single federal execution, the Government has executed twelve people since July,” Sotomayor wrote in her dissent.

“They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson,” Sotomayor wrote. “Today, Dustin Higgs will become the thirteenth.”

Sotomayor placed her remarks in a historical context, saying that at the federal level, the US “will have executed more than three times as many people in the last six months than it had in the previous six decades.”

Read more: An inmate who is scheduled to be executed just 5 days before Biden takes office tested positive for COVID-19

Describing the 2019 protocol by the Justice Department, which enabled the federal government to move forward with executions using a new drug, Sotomayor argued that, “throughout this expedited spree of executions, this Court has consistently rejected inmates’ credible claims for relief.”

“The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours,” Sotomayor said. “Very few of these decisions offered any public explanation for their rationale.”

“This is not justice.”

She mentioned the efforts of the Trump administration, lower level courts and the Supreme Court to speed up the federal executions. Sotomayor criticized her colleagues who have moved forward the executions, saying “this Court has repeatedly sidestepped its usual deliberative processes, often at the Government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions.”

Sotomayor also condemned the federal government for fast-tracking the executions of two men who tested positive for COVID-19 – Corey Johnson and Dustin Higgs – by arguing that a sooner execution would put the inmates out of their potential misery. Sotomayor dissented against the federal execution of Johnson a day earlier on January 14 because he was intellectually disabled and not afforded judicial review. 

Six of the 13 inmates killed since July have been Black, and a Death Penalty Information Center report from September 2020 showed that Black Americans are almost 30 times more likely to face the death penalty for the murder of a white victim than the other way around. 

“Those whom the Government executed during this endeavor deserved more from this Court,” Sotomayor said. “I respectfully dissent.”

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A week after Brandon Bernard’s execution and multiple attempts to persuade Trump to stop others, dozens of members of Congress are asking Biden to end the federal death penalty

Joe Biden
President-elect Joe Biden speaks at The Queen theater in Wilmington, Del., Wednesday, Dec. 9, 2020.

  • Dozens of members of Congress have called on President-elect Joe Biden to abolish the death penalty in all jurisdictions on his first day in office, CNN reported. 
  • The call comes after the execution of Brandon Bernard during a presidential lame-duck period. 
  • Activists had previously called on President Donald Trump to halt Bernard’s execution, as well as other scheduled during the presidential transition period. 
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Forty members of Congress and three recently elected members are urging President-elect Joe Biden to abolish the death penalty in all jurisdictions on his first day in office, CNN reported. 

The call was voiced in a letter written by Rep. Ayanna Pressley and sent to Biden’s transition team. In the letter, Pressley slams President Donald Trump’s administration for executing “more people in six months than the total number executed over the previous six decades.”

“With a stroke of your pen, you can stop all federal executions, prohibit United States Attorneys from seeking the death penalty, dismantle death row at FCC Terre Haute, and call for the resentencing of people who are currently sentenced to death,” Pressley wrote in the letter obtained by CNN. “Each of these elements are critical to help prevent greater harm and further loss of life.”

The call comes after the execution of Brandon Bernard and after multiple pleas to President Donald Trump to stop executions that were scheduled during the presidential transition period. 

Last week, Bernard became the ninth inmate to be executed this year by the Bureau of Prisons after a 17-year hiatus. So far, ten people have been executed this year. Bernard’s execution was the first of five scheduled before January 20, when Biden is sworn in, the BBC reported.

Bernard’s lawyers, as well as activists, pleaded for his sentence to be commuted to life in prison. His death was also the first time an execution has been carried out during a presidential lame-duck period in 130 years. 

“The current administration has weaponized capital punishment with callous disregard for human life,” Pressley wrote.

Additionally, the Death Row Information Center has reported that there 52 people on federal death row and 18 pending state executions. 

Biden has pledged to abolish the federal death penalty and to work to incentivize states to abolish theirs. 

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