Op-Ed: Biden’s Death Penalty Hypocrisy
The Biden administration is hypocritical in simultaneously imposing a moratorium on the federal death penalty and urging the Supreme Court to restore the death sentence to Boston Marathon suicide bomber Dzhokhar Tsarnaev. Indeed, the Biden administration’s choice to defend the death penalty for Tsarnaev reflects the inherently arbitrary nature of death penalty decisions.
For 17 years, under Republican and Democratic presidents, there was a hiatus in executions carried out by the federal government. The Trump administration, however, has dramatically changed course and carried out 13 executions. It was more than in the previous seven decades combined. No president in over 120 years oversaw as many executions of federal prisoners as Trump.
As a presidential candidate, Joe Biden said he opposed to the federal death penalty. Therefore, it was no surprise when Atty. General Merrick Garland, July 1 announced a moratorium on executions by the federal government. Like Garland wrote in the moratorium memorandum, “serious concerns were expressed about the continued use of the death penalty across the country, including arbitrariness in its application, the disparate impact on people of color and the disturbing number of exemptions from capital punishment and other serious cases ”.
In light of this recognition, it is surprising that the Justice Ministry urges the Supreme Court to uphold the death penalty for Tsarnaev. Dzhokhar and his brother Tamerlan were responsible for the 2013 Boston Marathon bombing that killed three people and injured hundreds more. Tamerlan was killed by the police, but Dzhokhar was tried for murder and sentenced to death.
The 1st Circuit Court of Appeal overturned his death sentence on the grounds that the trial judge had not done enough to ensure an impartial jury in the high-profile case and because the judge did not allow the jury to hear evidence that Tamerlan had murdered three people before the bombing. Dzhokhar had argued that he had been under the control and influence of his older brother, a violent murderer.
The appeal court did not overturn Tsarnaev’s conviction, only the death sentence; by virtue of his decision, he would have remained in prison for the rest of his life. Given Biden’s opposition to capital punishment, there was no reason to seek to reinstate the death penalty.
Going to the Supreme Court, the administration had to re-examine the case and decide that a death sentence was appropriate for Tsarnaev, despite the appeals court’s careful analysis of the serious shortcomings of the phase of sentencing. In fact, the Department of Justice, in its submissions and submissions to the Supreme Court, failed to provide any convincing explanation as to why execution is warranted in this case compared to other cases.
This failure gets to the heart of the matter: there is no principled way to decide when capital punishment is warranted, which is why every application is inevitably arbitrary.
Judge Stephen G. Breyer called this arbitrariness the antithesis of the rule of law. “The factors that should most clearly affect the application of the death penalty – namely the relative gravity of the crime – often do not,” he wrote. “Other studies show that circumstances which should not to affect the application of the death penalty, such as race, gender or geography, often to do. “
The only explanation for the Biden administration’s action in the Tsarnaev case is the huge publicity that surrounded his crime. But media attention certainly cannot be the factor that determines whether capital punishment is warranted.
It is possible that the government does not intend to execute Tsarnaev even if he wins in the Supreme Court, although the government lawyer suggested otherwise during Wednesday’s plea.
Everything Garland said in July is absolutely correct: the death penalty is imposed arbitrarily and without principle, it is used disproportionately against people of color, and there have been numerous cases of innocent people. wrongly condemned and condemned to death.
Biden understands this well. Instead of defending a death sentence in court, he should end the use of the federal death penalty and commute all death sentences to life imprisonment, including that of Dzhokhar Tsarnaev.
Erwin Chemerinsky is Dean of UC Berkeley Law School and a contributor to Opinion. He is the most recent author of “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights”.