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SCOTUS mystery: Will Biden admin defend Boston Marathon bomber's death sentence?

The Biden administration will have to prepare some fancy footwork over the next few weeks, at least in public relations, thanks to the Supreme Court. The justices granted cert in an appeal filed by the Trump administration over a ruling that invalidated the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.

That leaves Joe Biden and his repeatedly professed opposition to the death penalty to argue for executing Tsarnaev:

The Supreme Court said Monday it will consider reinstating the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, presenting President Joe Biden with an early test of his opposition to capital punishment.

The justices agreed to hear an appeal filed by the Trump administration, which carried out executions of 13 federal inmates in its final six months in office.

The case won’t be heard until the fall, and it’s unclear how the new administration will approach Tsarnaev’s case. The initial prosecution and decision to seek a death sentence was made by the Obama administration, in which Biden served as vice president.

But Biden has pledged to seek an end to the federal death penalty.

The appellate court ruled that the defense didn’t get enough opportunity to voir dire the jury for the sentencing phase or to offer evidence of Tsarnaev’s alleged manipulation by his brother. They ordered a new sentencing hearing, but the Trump administration immediately appealed — and wanted quicker action from the Supreme Court:

Past Supreme Court rulings don’t require asking prospective jurors about the specific content of the news reports they’ve seen or heard, the government said. Instead, the test is whether jurors can set aside their impressions or opinions and base their verdicts on the evidence presented.

In its ruling, the appeals court also said the judge at Tsarnaev’s trial improperly blocked evidence about a 2011 Boston-area murder, in which three men were bound, beaten and killed. The FBI interviewed a man who said he was there when Tsarnaev’s older brother carried out the murders.

The trial judge ruled that the testimony was unproven and that the killings were too far removed from the bombings. But the appeals court said the defense was deprived of evidence that showed the older brother was violent and domineering.

If Biden had just noted his personal opposition to the death penalty, he might not find himself in a political jam. The Department of Justice could have argued around the death penalty itself by telling the Supreme Court that the original trial abided by their guidelines and that it would be cruel to force that community into another trial, even just for sentencing.

Unfortunately, Biden didn’t just stop at venting his personal opposition to the death penalty. In reaction to a spate of executions at the end of Donald Trump’s term, Biden pledged to end all federal executions, presumably including that of Dzhokhar Tsarnaev. However, Biden’s been awfully quiet about it since taking office, Newsweek noticed at the beginning of the month:

As President Joe Biden approaches the mid-way point of his first 100 days in office, activists and civil rights groups are continuing to call on him to take action on ending the federal death penalty.

Thirteen inmates were put to death at the federal penitentiary in Terre Haute, Indiana during an unprecedented run of federal executions during the final months of the Trump administration.

Several were carried out during former president Donald Trump’s lame duck months and the final three executions took place just days before Biden’s inauguration.

On a campaign website, Biden—a death penalty opponent—pledged that, as president, he would “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.” But he has yet to speak on the issue since becoming president.

They provide this link to the policy page on the Biden-Harris campaign website:

Eliminate the death penalty. Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. 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.

The Guardian reported earlier this morning that anti-death-penalty advocates have grown increasing impatient with Biden’s inaction. That includes the people who have the most to lose:

Through notes passed under cell doors with string and conversations whispered through air ducts, death row prisoners in Indiana are debating whether Joe Biden will fulfill his campaign promise to halt federal executions.

Biden hasn’t spoken publicly about capital punishment since taking office four days after the Trump administration executed the last of 13 inmates at the penitentiary in Terre Haute, Indiana, where federal death row inmates are held. …

The easiest step for Biden would be to simply instruct the justice department not to carry out executions, though that would leave the door open for a future president to resume them. Inmates know Biden, while a senator, played a key role in passing a 1994 crime bill that increased federal crimes for which someone could be put to death.

“I don’t trust Biden,” Troya said. “He set the rules to get us all here in the first place.”

Biden has that option in this specific case. He could order the DoJ to simply withdraw the petition, but … it would have been easier to do that before the Supreme Court granted cert. In fact, it seems odd that Biden didn’t order that petition to be withdrawn, although that in itself wouldn’t have stopped the execution as much as suspended it for another sentencing trial. The DoJ could have defaulted on that in short order, though, allowing the lower court’s imposition of a life-without-parole sentence to stand.

At this point, though, the Supreme Court might not allow the petition to be withdrawn. If the DoJ wants out, they could theoretically appoint another party to argue the case on behalf of the prosecution now, which would leave Biden still holding the political bag if the court reinstates the death sentence. Allowing this petition to remain in the queue looks like an amateurish oversight.

In the end, though, Biden can cut through all of this with commutations. Why he hasn’t already done that is another mystery, unless Biden’s pledge was just an empty campaign promise. I’d guess that this one’s impossible to renege on, because the first execution would make Biden’s dishonesty so plain as to be unmistakable. On the other hand, commuting the death sentence for one of the most notorious domestic terrorists in the past two decades will have all sorts of political ramifications for Biden, too. Small wonder he’s been quiet ever since he took office.