The First Circuit Court of Appeals upheld 27 of his 30 convictions but voided his 3 death sentences, ruling that prospective jurors should have been questioned individually on what they had read or heard about the intensely publicized case, and sent it back for a new trial just on the punishment. That, and the precedent at stake, are what the government’s recently filed Supreme Court brief aims to prevent.
There is also a secondary issue over the judge’s refusal to allow testimony on earlier murders allegedly committed by Tsarnaev’s elder brother, Tamerlan, who appeared to have a controlling influence over him, and who died while resisting arrest.
Given that one of the Justice Department’s institutional missions is to uphold criminal convictions, the decision to appeal may have been made entirely by career officials, but they could not have been unaware of then-President Trump’s outburst against the appeals court ruling last year. He is as gung-ho for the death penalty as Biden is opposed to it.
A White House spokesman implied that Biden has kept his hands off the case because the Justice Department “has independence regarding such decisions.” Indeed, Biden has been scrupulous, perhaps to a fault, in respecting its independence. Trump certainly wasn’t.
And yet Biden’s spokesman also asserted that the president “has made clear that he has deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of justice and fairness.”
But that’s trying to have it both ways. Biden, in office nearly half a year now, has yet to ask Congress to repeal the federal death penalty. He has yet to declare even a moratorium on executions, like the 17-year hiatus that Trump ended with a spree of 13 late in his term.
Considering that the death penalty is an issue of national concern, Biden’s policy of leaving the Justice Department to its own devices is problematic. Although it reportedly has been deciding against seeking the death penalty in new cases, there are 46 men, including Tsarnaev, already on federal death row. Among them: Dylan Roof, the outspoken white racist who killed 9 people at a Black church in Charleston.
The demographics of the 46 speak volumes against the death penalty. According to the Death Penalty Information Center, more than 1/2 are minorities: 18 Black, 7 Hispanic and 1 Asian.
The longer Biden procrastinates, the more likely he will have to decide whether to commute a death sentence. The choice would be entirely his, not the Justice Department’s.
The Boston Marathon bombing was unquestionably a horrible crime, clearly qualifying as a terrorist act. But so was the bombing of the 1996 Olympics at Atlanta, which took 2 lives and injured 100. Eric Rudolph, the perpetrator, also bombed 2 women’s health clinics and a lesbian nightclub in what he claimed was a vendetta against abortion and homosexuality. A fugitive for 5 years after being identified and charged, Rudolph got a deal: life in prison in exchange for guilty pleas.
Theodore Kaczynski, the so-called Unabomber whose 16 mail bombs over a 17-year period killed 3 people and injured 23, is serving life also. The government waived the death penalty, apparently because his brother was responsible for his arrest.
A jury’s deadlock spared Terry Nichols, who helped Timothy McVeigh build the bomb that destroyed the federal building in Oklahoma City in April 1995, killing 169 people. Nichols is serving life. McVeigh was executed; Merrick Garland, now the attorney general, oversaw the federal prosecutions.
For Dzhokar Tsarnaev to be put to death while people like Rudolph, Kaczynski and Nichols serve life illustrates why Biden is rightly concerned with the justice and fairness of it. It has proved impossible to administer either the federal or state death penalty laws so that the worst of the worst are the only ones executed and that all of them are.
Biden’s reluctance to overrule the Justice Department on this issue isn’t the only way in which he’s raising eyebrows and creating worry lines among his supporters.
Rep. Adam Schiff, D-Calif, told MSNBC this week that he’s been getting “pushback from the administration” over his intention to introduce anti-corruption legislation prompted by Trump’s epic abuses of office.
For more than 2 centuries, Americans assumed that presidents would always respect the laws and the Constitution they were sworn to uphold and gave little thought to how that depended on the good will of those presidents.
Trump betrayed that trust, and there’s no guarantee that a future president wouldn’t follow his example.
Schiff didn’t say which parts of the legislation seem unwelcome at the Biden White House, but he mentioned that officials are “acting as executives do, in trying to protect executive privilege here.” There is, he added, “a higher priority here, and that is making sure our system of checks and balances works.”
Schiff, who chairs the House Intelligence Committee, is one of two House members whose communication records were subpoenaed by the Trump Justice Department. Eric Swalwell, D-Calif., was the other. Both were highly critical of Trump and were impeachment managers against him. Even though it has new leadership, the Justice Department appears to be stonewalling on why it went after their records during the Trump regime.
That doesn’t bode well for the future of Schiff’s anti-corruption legislation, which will resemble a bill House Democrats were unable to pass last year. It was aimed particularly at abuse of the pardon power, which would become subject to bribery laws, and would suspend the statute of limitations for any crimes committed by a sitting president or vice president. It would also codify the constitutional clause that prohibits presidents and other officials from accepting foreign emoluments, enhance Congress’ powers to enforce its subpoenas and budgetary decisions, and require the Justice Department to report to Congress any “inappropriate” attempts at political interference.
The White House, it turns out, has its own institutional inertia, and “executive privilege” is part of it. But that is a concept with no express foundation in the Constitution. It’s at war with the spirit of it and must not become a pretext for any more outlaw presidencies.
Source: The Sun Sentinel, Editorial, June 25, 2021. The Sun Sentinel Editorial Board consists of Deputy Editorial Page Editor Dan Sweeney, Steve Bousquet and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee.
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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
but by the punishments that the good have inflicted." -- Oscar Wilde