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Biden administration fails its first test on the death penalty

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Austin Sarat is appropriately scathing about an administration theoretically opposed to the death penalty filing a brief supporting the reinstatement of Dzhokhar Tsarnaev’s death sentence:

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 choice of Garland as AG was concerning precisely because he’s always been a 90s-era Tough on Crime judge. But in an era in which even fellow 90s Tough on Crime-er Stephen Breyer cannot constitutionally justify the death penalty there should be an actual moratorium on federal death sentences. Biden should live up to his commitments on the death penalty.

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