If Biden meant what he said, neither he nor the Justice Department can pick and choose exceptions
The US Supreme Court heard argument from the Biden administration in support of reinstating the death sentence of Dzhokar Tzarnaev, the Boston Marathon bomber, who was 19 years old when he and his 28-year-old brother Tamerlan committed the horrific attack that killed 3 people.
The argument before the Supreme Court on Wednesday hinged on whether the trial court improperly excluded evidence of his older brother’s influence and whether Tsarnaev was prejudiced by global publicity. The conservative majority of the court in its questioning appeared, not surprisingly, to be sympathetic to the Biden administration’s position in favour of execution. A critical question is why an administration whose president declared his opposition to capital punishment is pressing for Tzarnaev to be killed rather than spend the rest of his life in a supermax prison
The United States is at an inflection point with respect to capital punishment. In 2020, the United States remained, for the 12th consecutive year, the only country in the region to carry out executions. The number of executions decreased to 17, the lowest number since 1991. Only 18 new death sentences were imposed in 2020, dropping by almost 1/2 from 2019.
While the death penalty used to be remarkably popular, recent polls have shown significant shifts. In 1994, the Gallup poll found that fully 80 per cent of Americans supported the death penalty.
By 2020, that number had dropped to 55 %, and when asked whether they favoured life imprisonment without parole over capital punishment, a 2019 Gallup Poll showed 60 % of respondents were in favor of life without parole and only 36 % in favor of the death sentence.
Joe Biden was the 1st president elected who was openly opposed to capital punishment. His campaign website informed voters: “Because we cannot ensure we get death penalty cases right every time, 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.”
So much for the good news. The fact is that capital punishment remains a squalid tool of social control, and that it reinforces the darkest of America’s founding biases.
Death row inmates in the US are still predominantly people of colour, with 3 times as many Black people awaiting execution as white inmates. Those found guilty of killing white victims are 17 times more likely to receive the death penalty than those whose alleged victims were Black. Identification by largely white juries with white defendants and white victims remains the undeniable norm.
Meanwhile, as deinstitutionalization puts more and more vulnerable people suffering mental illness on the streets, the death penalty is being administered to those with significant cognitive and mental problems.
Last week, despite the pleas of Pope Francis, the Supreme Court declined to postpone the execution of Eugene Johnson. He had demonstrable lifelong severe cognitive impairment; a tumor that destroyed an additional 20 per cent of his brain mass, his IQ was in the 67-77 range (classified as significant to borderline mental retardation), and his communication skills were likened to those of a 5-year-old.
The Missouri Supreme Court ignored significant data showing both clear clinical and statutory definitions of intellectual disability, and instead substituted its judgment that Johnson was able “to plan, strategize, and problem solve – contrary to a finding of substantial subaverage intelligence.”
The Eighth Amendment to the US Constitution prohibits executing intellectually disabled people. This Supreme Court has not only permitted such executions to proceed, it has used the “shadow docket” of unsigned orders without plenary hearings to allow executions generally within 24 hours of receiving petitions for automatic stays, both in Johnson’s case and in a number of the 13 federal executions at the end of the Trump administration.
It is a court’s obligation to provide reasoned judgments when cases raise significant constitutional issues. The current ultra-conservative majority on the US Supreme Court has will not only refuse to stop executions; it will not even state its reasons. With Trump’s three appointees, it is likely to proceed in this fashion for a long time.
Biden and his Department of Justice could make a difference, at least with respect to the 45 prisoners who remain on federal death row, by commuting their sentences. The Justice Department could also express its views on constitutional issues with respect to state executions.
California has the largest death row in the country; its governor, Gavin Newsom, could make a difference there by commuting 747 capital sentences, thereby shrinking the US’ death row population by nearly nearly a third with a stroke of a pen. But none of this has happened, and recent developments are not promising.
The Justice Department has ordered a moratorium on federal executions, but it has now challenged the First Circuit Court of Appeals’s decision to vacate the Tsarnaev death sentence. It has also filed a brief in support of maintaining the federal death sentence of Dylan Roof, the Charlotte church mass shooter.
Both death sentences are highly likely to be affirmed by the Supreme Court. To be sure, these men’s crimes were heinous – but the death penalty is a system, characterised by randomness, racism, error and moral indefensibility.
Source: The Independent, Eric Lewis, October 14, 2021
Why Biden's team is pushing for a death penalty he won't execute
Supreme Court Justice Amy Coney Barrett asked a smart question this week: Why is President Biden's Justice Department trying to revive the death penalty sentence for the Boston Marathon bomber when it apparently has no intention of actually executing him?
"I'm wondering what the government's end game is here," Barrett said during Wednesday's hearing on the case. "So the government has declared a moratorium on executions, but you're here defending his death sentences. And if you win, presumably, that means that he is relegated to living under the threat of a death sentence that the government doesn't plan to carry out. So I'm just having trouble following the point."
The government's response to Barrett suggested the moratorium is merely temporary — but that's unlikely, at least while Biden is in office. As Hot Air's Ed Morrissey reminds us, Biden campaigned last year on a promise to "eliminate the death penalty." And when Attorney General Merrick Garland announced the moratorium on federal executions in July, he cited concerns about racism and the "troubling number" of death row exonerations. There doesn't appear to be significant action on Capitol Hill to address those concerns, so the Biden administration seems to be content to shelve planned executions instead.
A more realistic answer to Barrett's question is that the Justice Department's default setting is to maximally assert the power and prerogatives of the president and the federal government, even if that means defending policies and decisions the president himself doesn't like or personally intend to implement. It's why a George W. Bush administration lawyer once publicly rationalized a hypothetical question about torturing the child of a terrorist, and it's why the Biden administration has defended many (but not all) of its predecessor's claims of "executive privilege" to hide information from the public.
Some of this is about power: No president wants to narrow the boundaries of executive authority. And some of it is about the Justice Department's culture — attorneys general of both parties have asserted their department's "duty to defend" acts of Congress, even when those measures are constitutionally dubious.
That leaves the Biden administration in the odd position of arguing for a death penalty it doesn't support and won't carry out. That's easier than doing the difficult work of persuading Congress to end the federal death penalty. But as Justice Barrett indicated, it leaves a lot of people — the bomber, the families of his many victims — in a cruel limbo.
Source:
The Week, Joel Mathis, October 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
