Biden Campaigned on Ending the Death Penalty. His Justice Department Wants To Execute the Boston Marathon Bomber Anyway.

A new brief asks the Supreme Court to reinstate Dzhokhar Tsarnaev’s death sentence.

The Department of Justice (DOJ) is asking the Supreme Court to let the federal government execute Boston Marathon bomber Dzhokhar Tsarnaev, undermining President Joe Biden's campaign promise to eliminate the death penalty.

Federal prosecutors submitted a 48-page brief Monday asking the Supreme Court to reinstate the death penalty for Tsarnaev after the sentence was tossed out by a panel of judges with the U.S. Court of Appeals for the 1st Circuit in August 2020. The panel determined that the judge overseeing Tsarnaev's trial did a poor job of evaluating potential jurors for bias during the sentencing phase. At least two jurors had posted comments on social media expressing opinions about Tsarnaev prior to being seated. The court panel mandated a new sentencing trial for Tsarnaev.

Former President Donald Trump's DOJ appealed to the Supreme Court to reconsider the decision. The Supreme Court agreed in March to hear the case and consider reinstating the death penalty for Tsarnaev.

But while then-Attorney General William Barr and Trump were carrying out federal executions during the latter half of 2020, Democrats were campaigning against Trump with the promise of eliminating the federal death penalty. Biden's campaign site carries this pledge:

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. These individuals should instead serve life sentences without probation or parole.

This does not seem to be the actual position of the DOJ under Biden. The brief asks the Supreme Court to reverse the decision and "put this case back on track toward a just conclusion," meaning Tsarnaev's eventual execution.

"The jury carefully considered each of [Tsarnaev's] crimes and determined that capital punishment was warranted for the horrors that he personally inflicted—setting down a shrapnel bomb in a crowd and detonating it, killing a child and a promising young student, and consigning several others 'to a lifetime of unimaginable suffering,'" the brief concludes. "That determination by 12 conscientious jurors deserves respect and reinstatement by this Court."

It's easy to simply not care whether Tsarnaev gets executed. This is not a case where innocence is even remotely in question. Since the 1970s, about 185 people have been exonerated while on death row awaiting execution. Tsarnaev is never going to join that list.

Nevertheless, as long as the death penalty remains on the table, the likelihood of an innocent person's execution remains a concern. Biden's campaign position didn't contain an exemption for the killers who are most obviously guilty of extremely high-profile, terror-motivated violence. But his administration doesn't appear to be acting on the some-odd 59 people currently on death row in federal prison.

White House Press Secretary Jen Psaki was asked directly about the Tsarnaev case in March when the Supreme Court agreed to take up the case. Psaki said merely that Biden had "grave concerns about whether capital punishment, as currently implemented, is consistent with the values that are fundamental to our sense of justice and fairness. He's also expressed his horror at the events of that day and…Tsarnaev's actions."

No federal death row inmates were executed during the eight years of former President Barack Obama's administration. But even so, federal prosecutors continued to seek the death penalty for certain cases, as they did here with Tsarnaev. It's easy to see the Biden administration taking the same path of least resistance. His DOJ could decline to schedule any executions while continuing to pursue and defend the death penalty in the sentencing phase. He could then claim to have not put anybody to death while not actually changing the policies at all.

Biden promised to sign legislation to end the death penalty if Congress passed it. But he could, if he were inclined, commute the sentences of every federal prisoner on death row to a life term. He has not done so. And clearly his own Justice Department is still in favor of having the authority to execute prisoners for capital crimes.