Biden frustrates death penalty opponents with Supreme Court request

Opponents of capital punishment are expressing frustration with the Biden administration’s request this week that the Supreme Court reinstate the death penalty against Boston Marathon bomber Dzhokhar Tsarnaev.

Critics see the Department of Justice (DOJ) move as inconsistent with President Biden’s calls on the campaign trail to eliminate capital punishment.

Outright repeal of the federal death penalty would require legislation, which is unlikely to clear the current Congress given the deep partisan divide. But advocates say Biden could take steps on his own to curtail executions carried out by the federal government and are renewing calls for him to do just that.

“This move from the DOJ contravenes the president’s vow to work with Congress to abolish the federal death penalty,” said Kristina Roth, a senior advocate in Amnesty International USA’s criminal justice program. “Regardless of the Supreme Court’s decision in this case, President Biden can, and should, commute all federal death sentences.”

Tsarnaev received the death penalty in 2015, two years after he and his since-deceased older brother used pressure cooker bombs to kill three people and injure 260 in an attack near the finish line of the Boston Marathon. After a six-week federal trial, Tsarnaev was convicted of 30 charges, including the use of a weapon of mass destruction.

But last year a federal appeals court vacated Tsarnaev’s death sentence. The Boston-based U.S. Court of Appeals for the 1st Circuit ruled that the trial court had failed to adequately screen jurors for possible bias, and erred in excluding evidence that Tsarnaev had been influenced by his older brother.

Tsarnaev, 27, will serve out multiple life sentences in federal prison if he is ultimately spared a death sentence.

Former President Trump asked the Supreme Court in October to reverse the appeals court decision and reimpose the death penalty for Tsarnaev, and the justices agreed in March to take up the government’s appeal.

During the 2020 presidential campaign, Biden was sharply critical of Trump over his decision to resume federal executions in July 2019 after a 17-year moratorium.

“Since 1973, over 160 individuals in this country have been sentenced to death and were later exonerated,” Biden tweeted after the Trump administration said it would resume capital punishment. “Because we can’t ensure that we get these cases right every time, we must eliminate the death penalty.”

Under Trump, the U.S. government carried out 13 executions at the federal prison in Terre Haute, Ind., including 10 last year. According to the Death Penalty Information Center, last year marked the first time the federal government conducted more executions than all states combined, though the group noted that some of the disparity was from delayed court proceedings due to the pandemic.

States are free to set their own death penalty policies so long as they comply with the U.S. Constitution’s prohibition on cruel and unusual punishment and other federal limits. To date, 23 states and Washington, D.C., have abolished capital punishment, and governors in three other states have imposed moratoriums, according to the Death Penalty Information Center.

The Tsarnaev case was seen as early test of whether the Biden administration would break with Trump and deliver on the president’s stated opposition to the death penalty, a position which made Biden the first U.S. president to publicly oppose the practice.

Death penalty opponents were encouraged when Merrick Garland, during his confirmation hearings this year for attorney general, expressed misgivings about the death penalty and its disparate impact on people of color.

“I have had a great pause about the death penalty,” Garland told the Senate Judiciary Committee in February. “I expect that the president will be giving direction in this area and, if so, I expect it not at all unlikely that we will return to the previous policy.”

But some repeal advocates said that this week’s request to the Supreme Court highlighted the growing disconnect between Biden’s rhetoric and his administration’s actions.

Cassandra Stubbs, director of the American Civil Liberties Union’s (ACLU) capital punishment project, expressed frustration that the White House has not imposed a moratorium on capital prosecutions.

“When Merrick Garland was being questioned regarding a moratorium on the death penalty at his confirmation hearing, he forecast guidance from the White House on a moratorium policy regarding death penalty cases,” she said. “Disappointingly, to date there has been no such guidance despite President Biden’s campaign promise to work to end the federal death penalty.”

In the DOJ’s brief to the Supreme Court on Monday, the department made clear that Biden would maintain his predecessor’s support for reinstating capital punishment against Tsarnaev.

“The jury carefully considered each of respondent’s crimes and determined that capital punishment was warranted for the horrors that he personally inflicted — setting down a shrapnel bomb in a crowd and detonating it, killing a child and a promising young student, and consigning several others to a lifetime of unimaginable suffering,” the DOJ’s 48-page brief reads.

“That determination by 12 conscientious jurors deserves respect and reinstatement by this Court,” it adds.

A spokesman for the White House told The Hill that “the president believes the Department should return to its prior practice, and not carry out executions.” However, the spokesman also added that the DOJ “has independence regarding such decisions.”

The DOJ declined to comment.

The administration’s current posture has left some death penalty opponents feeling disappointed.

“While the decision ultimately is in the hands of the Justice Department, the president’s influence carries a lot of weight in helping the department make the right decision,” said Sakira Cook, senior director of the justice reform program at The Leadership Conference on Civil and Human Rights. 

“President Biden can do more to end this cruel, ineffective, and irreversible punishment once and for all,” she said. “The President has the power to effectuate his campaign promises and progressive policy changes in this area through executive action.” 

Some death penalty policy experts said they believe the issue remains a priority of the Biden administration, but one that’s taking a back seat to bigger concerns like the coronavirus pandemic and stewardship of the economic recovery.

Altering the U.S. approach to the death penalty could also carry political consequences for Biden.

After Trump eroded the traditional firewall between the White House and DOJ, Biden’s administration has sought to restore it, including by giving the DOJ the independence to take legal positions that are unpopular with some Democrats.

It also would be “politically hazardous” for Biden to single out a high-profile defendant like Tsarnaev or Charleston church shooter Dylann Roof to make his stand against the death penalty, said Robert Dunham, executive director of the Death Penalty Information Center.

Yet at the same, the United States could demonstrate moral leadership and reaffirm its dedication to human rights by putting Biden’s repudiation of the death penalty into practice, he added.

“President Biden seems very interested in assuring U.S. allies that America is back. … Our European allies universally regard capital punishment as a human rights violation,” Dunham said. “So fulfilling the president’s campaign promise would be a significant step towards assuring U.S. allies around the world that America is in fact back.”

The Supreme Court is expected to hear arguments next term in the case, U.S. v. Tsarnaev, No. 20-443.