Well, this is profoundly disappointing.
President Biden categorically opposes capital punishment, and has promised to end the federal death penalty. So those of us who share his aversion, and who watched with horror the federal execution spree in the final months of the Trump administration, had reason to hope that here, at least, there would be a clear break from that barbarism.
But on Monday, Biden’s Justice Department filed a brief with the nation’s highest court that was anything but. Attorney General Merrick Garland is continuing his predecessor’s fight to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev after an appeals court overturned it last year. It’s just the latest of several perplexing decisions Garland has taken to support the unjust, or cynical maneuvers of his morally vacant predecessor, Bill Barr.
But before we get to that: How dispiriting it is that we are still talking about this terrorist eight years after the bombs he and his murderous brother planted tore through so many lives at the finish line, and beyond. If a jury hadn’t decided he should be put to death, Tsarnaev would be gone, serving out the rest of his days in federal prison. But a death penalty invariably initiates a long and expensive appeals process, making it impossible for those who’d like to hear nothing more from this terrorist to move on.
Of course, plenty of those hurt by Tsarnaev would like him to be executed, to see his life taken, just as he took Krystle Campbell’s, Lingzi Lu’s, Martin Richard’s, Sean Collier’s. That’s an understandable impulse. But killing a killer, meeting his inhumanity with state-sponsored inhumanity inflicted in our name, diminishes us all and sacrifices any claim to the moral high ground.
Biden, who was vice president when federal prosecutors sought execution for Tsarnaev to begin with, has called for an end to the death penalty because our history is loaded with examples of those who were wrongly executed. In March, when the Supreme Court agreed to take this case, his spokesperson Jen Psaki said Biden “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.”
But Biden and the attorney general have taken great pains to make it clear that the Department of Justice does not do his bidding, that it is no longer the personal law firm and vendetta factory it was under Trump.
But that concern to avoid even the appearance of undue influence is veering into fetish territory. Garland and his attorneys have taken some operatically independent and truly distressing positions in his short tenure, chief among them the decision to continue to defend Trump against a defamation suit by E. Jean Carroll, who has alleged Trump raped her decades ago. Garland, like Barr, is essentially arguing that Carroll cannot sue Trump because publicly trashing an alleged rape victim was part of his official duties as president. That is appalling.
It’s worth noting here that, despite his disgraceful treatment by the Republican senators who refused to consider confirming him when President Barack Obama nominated him to the US Supreme Court in 2016, Garland is no progressive firebrand. After all, Obama nominated him because he believed Republicans would like him. Garland was the chief prosecutor in the Oklahoma City bombing, for which Timothy McVeigh was put to death. His attorneys are seeking the same outcome for Tsarnaev. And so abolitionists feel betrayed, and are rightly incensed.
Northeastern University law professor Daniel Medwed says all is not yet lost, however. The Tsarnaev case is an idiosyncratic one, he says, spanning three administrations.
“The Department of Justice was not operating with a clean slate,” he said. “For other cases that might be eligible, my hope and anticipation is that Biden will not seek the death penalty, and will take steps to limit it.”
Let’s pray that’s the case, though it’s hard to see what Biden can do beyond a pause on executions that can be easily reversed. But if you voted for a president who opposes the death penalty as clearly as Biden does, this week has been a distressing one.
A life, even one considered worse than worthless, is never ours to take. If Biden can’t draw the line here, how can he draw it anywhere?