Judge Merrick Garland said he did not regret pursuing the death penalty against Oklahoma City bomber Timothy McVeigh but testified that he had grown to have doubts about capital punishment during his 20 years on the bench and would have no problem if President Biden instituted a federal moratorium on it.
Garland said that neither Biden nor anyone from his administration, transition, or campaign had asked him not to pursue capital punishment in cases against murderers or terrorists during questioning by Sen. Tom Cotton, who then asked if he regretted pushing for the death penalty against McVeigh, whose bombing of the Alfred P. Murrah Federal Building in 1995 killed 168 people and wounded hundreds of others.
“As I said in my original Senate hearing when I became a judge originally, I supported the death penalty at that time for Mr. McVeigh in that individual case. I don’t have any regret,” Garland replied. “But I have developed concerns about the death penalty in the 20-some years since then, and the sources of my concern are issues of exonerations of people who have been convicted, of sort of arbitrariness and randomness of its application because of how seldom it’s applied, because of its disparate impact on black Americans and other communities of color. Those are the things that give me pause, and those are things that have given me pause as I’ve thought about it over the last 20 years.”
In his opening remarks, Garland had pointed to his successful prosecution of McVeigh while at the Justice Department.
“From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government,” Garland said. “If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on Jan. 6 — a heinous attack that sought to disrupt a cornerstone of our democracy.”
Cotton asked whether Garland would grant a U.S. attorney approval to pursue the death penalty if another white supremacist carried out a terrorist attack, and the judge said it would depend on what DOJ’s policy was.
“If the president asks, or we develop a policy about a moratorium, then it would apply across the board. There’s no point in making a policy if you make individual discretionary decisions,” Garland said.
The Arkansas Republican noted, “You said in your opening statement and in response to several senators that you would strictly regulate between the White House — that there would be no partisan influence.” Cotton asked if this would be an instance “where there would be influence from the White House in individual cases.”
“What I’m trying to say here is if there was a policy decision made by the president and announced by the president, he certainly has the authority to direct — and nothing inappropriate about it, it’s within his authority — to require an across-the-board moratorium,” Garland said. “What I was talking about was not a decision by the president in any particular case or a direction on how any particular case should go forward but of a moratorium, which would require across the board.”
The judge added: “The Supreme Court has held that the death penalty is constitutional but not required.”
Then-Attorney General William Barr, who in the summer of 2019 unveiled new guidelines for resuming capital punishment following a hiatus stemming back to 2003, announced the resumption of federal executions last summer, and numerous executions occurred since then, including during the Biden transition after he won in November.
“The American people, acting through Congress and Presidents of both political parties, have long instructed that defendants convicted of the most heinous crimes should be subject to a sentence of death,” Barr said at the time, adding that “we owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”
In response to Barr’s announcement, then-candidate Biden tweeted, “Because we can’t ensure that we get these cases right every time, we must eliminate the death penalty.” Biden’s campaign website stated that “Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.” The president has not yet announced what actions he will take on the federal death penalty.
Cotton brought up the case of Dylann Roof, a white supremacist convicted for the 2015 murder of nine black worshippers at Emanuel African Methodist Episcopal Church in South Carolina, and asked if it was a mistake when the Obama administration sought the death penalty. Garland declined to comment because “I have a feeling that this is still a pending matter.”
“Let’s suppose that another white supremacist walks into another African American church and murders African Americans worshipping Christ in cold blood,” Cotton said. “The U.S. attorney seeks the death penalty against that white supremacist — would you approve it?”
Garland again said it depended on the policy going forward.
“I would not oppose a policy of the president, because it is within his authority to put a moratorium on the death penalty in all cases, and instead to seek mandatory life without possibility of parole — without consideration of the facts of any particular case,” Garland replied.
Biden changed his position on the death penalty after Barr’s announcement in the summer of 2019, calling for its abolition despite having been among the Senate’s most vocal supporters, previously bragging that in one of his proposals, “We do everything but hang people for jaywalking.” Biden released a criminal justice reform plan repudiating his signature 1994 crime bill and calling for the “elimination” of the death penalty nationwide.
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