Don't misunderstand me based on the headline — I'd be first in line to push the plunger, flip the switch, or pull the trigger to carry out the death penalty on Dzhokhar Tsarnaev, convicted for the April 2013 bombing of the finish line of the Boston Marathon which killed three people and injured 260 more. I never ran for President on a platform and making campaign promises to abolish the federal death penalty.
Tsarnaev and his brother orchestrated the bombing, with his brother being killed in a shootout with police while they were trying to take him into custody.
Tsarnaev stood trial in federal court in Massachusetts starting in January 2015. The trial ended on April 8, 2015, with Tsarnaev being convicted of all 30 counts charged in the indictment. The jury recommended that he receive the death penalty, and the trial judge agreed.
But a problem developed in the summer of 2020 when the Court of Appeals for the First Circuit reversed Tsarnaev's death sentence due to problems with the way the district court judge conducted jury selection, specifically with respect to the way “death qualified” jurors were selected. The First Circuit affirmed Tsarnaev's convictions, but reversed the death sentence and sent the case back to the district court for a new penalty phase trial.
The government appealed the First Circuit's decision to the Supreme Court, and in March, the Supreme Court agreed to hear the case next term.
Today, the Department of Justice filed its opening brief in its appeal to the Supreme Court. In it, the Biden Administration Solicitor General requested that the Court reverse the judgment of the First Circuit and reinstate the death sentence imposed by the trial court judge.
But according to the Associated Press back on November 21, 2020:
President-elect Joe Biden is against the death penalty and will work to end its use, his spokesman said Saturday, as the Justice Department scheduled three more federal executions during before the Jan. 20 inauguration, including two shortly before he is set to take office.
Biden “opposes the death penalty now and in the future,” press secretary TJ Ducklo said. He did not say whether executions would be paused immediately once Biden takes office.
In a story published Tuesday in Slate, the author wrote:
When Joe Biden took the oath of office as the 46th president of the United States, opponents of America's death penalty, including me, celebrated. We took heart from his stated opposition to capital punishment and his campaign promise to end the federal death penalty. It seemed as if the United States had its first abolitionist president.
During his campaign, Biden pledged that he would stop federal executions, propose legislation to abolish the death penalty at the federal level, and provide incentives for states to follow suit. He recognized that America's death penalty system is rife with error and unfairness. “Because we can't ensure that we get these cases right every time,” candidate Biden tweeted, “we must eliminate the death penalty.”
Here is a short video from a campaign event in New Hampshire in the summer of 2019 where Joe Biden congratulates the state of New Hampshire for having abolished the death penalty under state law.
The brief filed today justified the death sentence imposed on Tsarnaev as “appropriate” given the magnitude of his crime.
It would not have been difficult for the Biden Justice Department to get away from this case. The First Circuit reversed the death penalty and sent the case back for a new death penalty phase. The Biden Administration could have dropped the appeal to the Supreme Court and allowed the First Circuit ruling to stand. It could have then gone back to the District Court in Massachusetts and withdrawn the enhancement charge that opened the door to the imposition of the death penalty. That would have left the district court judge with no option other than to sentence Tsarnaev to life in prison without parole.
That would have been perfectly consistent with his campaign promises and the Democrat Party platform.
So why did the Justice Department choose this path?
Because they see less of a political downside to disappointing their supporters like the ACLU who are going to stay with Biden and the Democrats regardless of Tsarnaev's case. They fear looking “soft on crime” with independents by not working to keep in place the death penalty imposed on the Boston Marathon Bomber.
It's all politics. Joe Biden has always been a charlatan and a political huckster. He's always been ready, willing, and able to say whatever is needed at any moment in time that allows him to press a political advantage.
The disappointment death penalty opponents feel today about Biden's betrayal should only come as a surprise to them if they haven't paid attention to the guy's career in Washington over the past 50 years.
The video above, which YouTube has dated as of June 20, 2019 — almost exactly two years ago — is very informative on the question of Biden's cognitive decline. Even though he's not nearly as glib in the video he was 20 years ago, he gives a four-minute coherent answer off the top of his head on the question of reducing the federal prison population if elected President.
He looks and sounds nothing like the stuttering and addled elderly gentleman in yesterday's press conference at the G7 summit.
The contrast is pretty striking and should put an end to the idea that the claims of his advancing senility are part of a right-wing plot to force him from office.
Final note — the jury selection issues in Tsarnaev's case will have relevance to the recent trial and conviction of Derek Chauvin for the murder of George Floyd. Tsarnaev made multiple motions to have his trial moved out of the District of Massachusetts due to prejudicial pretrial publicity but the district court judge refused. The district court judge promised to employ a deep and intensive voir dire examination of prospective jurors in order to eliminate anyone who could not be a fair and impartial juror due to the pretrial publicity. The First Circuit held that the judge had failed in his promise to do so and that the juror pool may have been so compromised that it was not possible to find a fair and impartial jury in the District of Massachusetts.
The conduct of the trial judge in the Chauvin trial will ultimately be measured against the standards the Supreme Court establishes in the Tsarnaev decision.