When Joe Biden took the oath of office as the 46th president of the United States, opponents of America’s death penalty, including me, celebrated. We took heart from his stated opposition to capital punishment and his campaign promise to end the federal death penalty. It seemed as if the United States had its first abolitionist president.
During his campaign, Biden pledged that he would stop federal executions, propose legislation to abolish the death penalty at the federal level, and provide incentives for states to follow suit. He recognized that America’s death penalty system is rife with error and unfairness. “Because we can’t ensure that we get these cases right every time,” candidate Biden tweeted, “we must eliminate the death penalty.”
Death penalty opponents, heartened by such promises, called on the new president to take bold, dramatic action on Day One of his administration. One month before Biden took office, 45 members of Congress, led by Rep. Ayanna Pressley of Massachusetts, wrote to the president-elect, asking him to act on Jan. 20 “to clearly demonstrate your commitment to eliminating the death penalty.”
But that day came and went without any action to turn Biden’s campaign promise into policy.
During his first 100 days, he signed scores of executive orders and acted to reverse many of the Trump administration’s policies. But, over the first five months of its term, the Biden administration remained silent about the death penalty.
As the months passed, Biden’s silence and inaction began to arouse concerns in the abolitionist community. Anti–death penalty activists and organizations worried that ending capital punishment was slipping as a Biden priority, getting buried as he turned his attention to other parts of his agenda.
But on Tuesday, the silence and inaction ended in a stunning reversal of position.
Instead of announcing the end to federal capital prosecutions, a moratorium on federal executions, steps to dismantle the federal execution chamber in Terre Haute, Indiana, or support for congressional legislation to end the death penalty, Biden’s first decision about capital punishment was to endorse it.
He broke his promise and failed his first death penalty test in a very big way when his administration filed a brief with the United States Supreme Court asking it to reinstate the death sentence of Boston marathon bomber Dzhokhar Tsarnaev. The brief defended the death penalty as an appropriate response to what it called “one of the worst” acts of terrorism on U.S. soil since Sept. 11.
Tsarnaev was sentenced to death for the 2013 bombing at the finish line of the Boston Marathon that killed three and wounded more than 260 others, and he is by no means a sympathetic character. He is one of 46 people now on the federal death row. His death sentence was overturned on July 31 by the 1st U.S. Circuit Court of Appeals, which ruled that the trial judge had not protected the defendant from potential bias during the jury selection process and had erred by excluding mitigating evidence.
The Trump administration brought the case to the Supreme Court last fall, seeking reinstatement of the death sentence. And ironically the Biden Justice Department’s position in the Tsarnaev case, which it calls “one of the most important terrorism prosecutions in our Nation’s history,” turns out to be exactly the same as the position articulated by William Barr, Donald Trump’s attorney general.
The depths of the administration’s hypocrisy are revealed when we recall what the president’s press secretary said in March, when the Supreme Court announced that it would take up the Tsarnaev case.
“President Biden,” Jen Psaki said at the time, “made clear, as he did on the campaign trail, that he has grave concerns about whether capital punishment, as currently implemented, is consistent with the values that are fundamental to our sense of justice and fairness.”
Those concerns seem to have evaporated when they were put to a stern test.
The brief submitted to the Supreme Court on Tuesday does not read like it issues from an anti–death penalty administration. Instead, it deploys the classic images and arguments of death penalty supporters: a horrible crime, an unrepentant defendant, a trial court bending over backward to protect his rights.
The brief takes pains to rehearse in excruciating detail the genuine horrors of what Tsarnaev did. Sounding like a zealous prosecutor with an ardently pro–death penalty constituency, it says that, “The bombs caused devastating injuries that left the street with ‘a ravaged, combat-zone look.’ … ‘Blood and body parts were everywhere,’ littered among ‘BBs, nails, metal scraps, and glass fragments. The smell of smoke and burnt flesh filled the air, and screams of panic and pain echoed throughout the site.’ ”
Far from being unsettled by the devastation of the crime, Tsaranev, the brief points out, returned to the dorm at the college he was attending and later worked out at the gym with a friend. It notes that he tweeted, “I’m a stress free kind of guy.”
It argues that the trial was scrupulously fair. “The jury,” it contends, “carefully considered each of respondent’s crimes and determined that capital punishment was warranted for the horrors that he personally inflicted.”
The brief accuses the appellate court that overturned Tsarnaev’s sentence, in language that exactly parallels words used in the Trump administration’s original Supreme Court brief, of relying on what it labels a “novel, inflexible, and unsupported … rule to invalidate respondent’s capital sentences.”
And it calls Tsarnaev a “’[r]adical jihadist […] bent on killing Americans.’” It concludes that the defendant “deserved the ultimate punishment for his horrific crimes.”
Opposing the execution of Tsarnaev, no doubt, would have imposed a political cost that the Biden administration was unwilling to pay. It might even have drawn the administration into the vortex of culture wars that it has seemed so intent on avoiding.
The brief filed on Tuesday also reprises the position that Attorney General Merrick Garland took in an earlier domestic terrorism case, the federal death penalty prosecution of Timothy McVeigh for the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City.
Whatever its political motives and potential explanations, the Biden administration should have recognized that the state killing any citizen—even one who has committed a crime as horrific as Tsarnaev’s—always compromises the “values that are fundamental to our sense of justice and fairness,” as Biden put it.
As former Supreme Court Justice Felix Frankfurter once noted, “A shocking crime puts law to its severest test.” In its first foray into the death penalty, the Biden administration failed that test.
, Austin Sarat, June 15, 2021
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
