Barrett to Biden admin: Why are you asking for a death penalty you won't carry out?

Erin Schaff/The New York Times via AP, Pool

“I’m wondering what the government’s end game is here,” Supreme Court Justice Amy Coney Barrett mused in oral arguments yesterday, and for good reason. The Biden administration has petitioned the court to reinstate the death penalty imposed on Boston Marathon bomber Dzokhar Tsarnaev, which was overturned on appeal. But what’s the point of that when Joe Biden has already announced a moratorium on all federal executions?


Justice Amy Coney Barrett asked whether the case before the justices was an empty exercise in light of Mr. Biden’s opposition to the death penalty and the moratorium on federal executions imposed in July by Attorney General Merrick B. Garland.

“I’m wondering what the government’s end game is here,” she said to Mr. Feigin. “So the government has declared a moratorium on executions, but you’re here defending his death sentences. And if you win, presumably, that means that he is relegated to living under the threat of a death sentence that the government doesn’t plan to carry out. So I’m just having trouble following the point.”

Mr. Feigin responded that the moratorium was in place to allow the government time to review its policies and procedures in capital cases and that the jury’s sentencing decision deserved respect.

Until July 2020, there had been no federal executions in 17 years. In the six months that followed, the Trump administration executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.

Indeed he did, because Trump actually did respect both the jury verdicts and the law that provided for death penalties in certain cases. In that sense, Feigin’s response is laughably hypocritical. If Biden respected jury verdicts, he wouldn’t have imposed a moratorium that overrides them. And to that point, let’s recall what Biden declared as a candidate in last year’s election:


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.

So why fight to reinstate Tsarnaev’s death sentence? It looks like a PR stunt by which Biden wants to eat his cake and have it too. The Boston community was outraged over the terrorist attack and then by the overturning of the death sentence. Biden wants to look tough on terrorists, and the political value in that sense of opposing the overturning of the sentence is obvious. But Biden also wants to pander to the progressives — and moderates as well as some conservatives — in opposing the death penalty, so there’s zero chance that his administration will perform this execution. It’s a waste of court time and resources to argue this, at least in the context of the Biden administration.

To make this point even more plain, Biden didn’t actually need to issue a moratorium to stop executions. He has plenary clemency powers and could have just issued commutations to all federal prisoners on Death Row that reduced their sentences to life without parole. That would have removed the need for any moratorium, but would have put the onus on the change directly on Biden. And clearly Biden doesn’t want to assume that kind of political risk, not even in allowing someone else to fight for reimposing a death penalty verdict that Biden explicitly opposed as late as November 2020.


One has to suspect that the court will be inclined to truly respect the jury verdict and reinstate the death penalty. Guessing outcomes on oral arguments is usually a fool’s errand, but the crux of the defense case for overturning the sentence is that the judge didn’t allow the incomplete testimony of a dead man to allow them to argue that Dzokhar was too dominated by his brother Tamerlan to be fully responsible for his actions:

“The entire point of the defendant’s mitigation case was that he was dominated by, unduly influenced by, his older brother — and that would have gone to exactly that point,” Justice Elena Kagan said.

The argument did not seem to gain traction with the court’s more conservative members, who appeared to view the evidence as equivocal and speculative. It came from a 2013 F.B.I. interview with a friend of Tamerlan Tsarnaev named Ibragim Todashev.

Mr. Todashev said he had participated in the robbery of three drug dealers in Waltham in 2011. But he added that Tamerlan Tsarnaev alone had slit the victims’ throats. As Mr. Todashev started to write down his confession, he suddenly attacked the agents, who shot and killed him.

That’s hearsay on top of hearsay, with no corroboration available. Justice Samuel Alito called it “inadmissible several times over,” which seems very accurate. If there was more direct evidence and testimony of Tamerlan’s supposed domination of Dzokhar, a judge would certainly have allowed it in the sentencing phase. If the court upholds the reversal, it’s likely going to rely on the other defense argument about pretrial publicity and the lack of probing voir dire on that issue.


But either way, as Justice Barrett points out, Tsarnaev won’t get executed, at least not by the administration that argues he should be. That makes this entire exercise a farce.

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David Strom 6:40 PM | April 18, 2024