Biden betrays his promise on the death penalty by pushing for Boston Marathon bomber’s execution

If Biden meant what he said, neither he nor the Justice Department can pick and choose exceptions

This file photo released April 19, 2013, by the Federal Bureau of Investigation shows Dzhokhar Tsarnaev, convicted for carrying out the April 15, 2013, Boston Marathon bombing attack that killed three people and injured more than 260. (Federal Bureau of Investigation)

The US Supreme Court heard argument from the Biden administration in support of reinstating the death sentence of Dzhokar Tzarnaev, the Boston Marathon bomber, who was 19 years old when he and his 28-year-old brother Tamerlan committed the horrific attack that killed three people.

The argument before the Supreme Court on Wednesday hinged on whether the trial court improperly excluded evidence of his older brother’s influence and whether Tsarnaev was prejudiced by global publicity. The conservative majority of the court in its questioning appeared, not surprisingly, to be sympathetic to the Biden administration’s position in favour of execution. A critical question is why an administration whose president declared his opposition to capital punishment is pressing for Tzarnaev to be killed rather than spend the rest of his life in a supermax prison

The United States is at an inflection point with respect to capital punishment. In 2020, the United States remained, for the 12th consecutive year, the only country in the region to carry out executions. The number of executions decreased to 17, the lowest number since 1991. Only 18 new death sentences were imposed in 2020, dropping by almost half from 2019.

While the death penalty used to be remarkably popular, recent polls have shown significant shifts. In 1994, the Gallup poll found that fully 80 per cent of Americans supported the death penalty.

By 2020, that number had dropped to 55 per cent, and when asked whether they favoured life imprisonment without parole over capital punishment, a 2019 Gallup Poll showed 60 per cent of respondents were in favor of life without parole and only 36 per cent in favor of the death sentence.

Joe Biden was the first president elected who was openly opposed to capital punishment. His campaign website informed voters: “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.”

So much for the good news. The fact is that capital punishment remains a squalid tool of social control, and that it reinforces the darkest of America’s founding biases.

Death row inmates in the US are still predominantly people of colour, with three times as many Black people awaiting execution as white inmates. Those found guilty of killing white victims are 17 times more likely to receive the death penalty than those whose alleged victims were Black. Identification by largely white juries with white defendants and white victims remains the undeniable norm.

Meanwhile, as deinstitutionalization puts more and more vulnerable people suffering mental illness on the streets, the death penalty is being administered to those with significant cognitive and mental problems.

Last week, despite the pleas of Pope Francis, the Supreme Court declined to postpone the execution of Eugene Johnson. He had demonstrable lifelong severe cognitive impairment; a tumor that destroyed an additional 20 per cent of his brain mass, his IQ was in the 67-77 range (classified as significant to borderline mental retardation), and his communication skills were likened to those of a five-year-old.

The Missouri Supreme Court ignored significant data showing both clear clinical and statutory definitions of intellectual disability, and instead substituted its judgment that Johnson was able “to plan, strategize, and problem solve – contrary to a finding of substantial subaverage intelligence.”

The Eighth Amendment to the US Constitution prohibits executing intellectually disabled people. This Supreme Court has not only permitted such executions to proceed, it has used the “shadow docket” of unsigned orders without plenary hearings to allow executions generally within twenty four hours of receiving petitions for automatic stays, both in Johnson’s case and in a number of the 13 federal executions at the end of the Trump administration.

It is a court’s obligation to provide reasoned judgments when cases raise significant constitutional issues. The current ultra-conservative majority on the US Supreme Court has will not only refuse to stop executions; it will not even state its reasons. With Trump’s three appointees, it is likely to proceed in this fashion for a long time.

Biden and his Department of Justice could make a difference, at least with respect to the 45 prisoners who remain on federal death row, by commuting their sentences. The Justice Department could also express its views on constitutional issues with respect to state executions.

California has the largest death row in the country; its governor, Gavin Newsom, could make a difference there by commuting 747 capital sentences, thereby shrinking the US’ death row population by nearly nearly a third with a stroke of a pen. But none of this has happened, and recent developments are not promising.

The Justice Department has ordered a moratorium on federal executions, but it has now challenged the First Circuit Court of Appeals’s decision to vacate the Tsarnaev death sentence. It has also filed a brief in support of maintaining the federal death sentence of Dylan Roof, the Charlotte church mass shooter.

Both death sentences are highly likely to be affirmed by the Supreme Court. To be sure, these men’s crimes were heinous – but the death penalty is a system, characterised by randomness, racism, error and moral indefensibility.

If Biden meant what he said, neither he nor the Justice Department can pick and choose exceptions, a Muslim here, a racist there. Either there is a federal death penalty or there is not – and as Trump showed, a moratorium does not prevent a killing spree which affects disproportionately people of colour and those with mental disabilities. It is past time to stop playing political games and take real action to stop this chaotic and grotesque system.

The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to its Business Leaders Against the Death Penalty declaration – with The Independent being the latest on the list. We join high-profile executives such as Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative, and are making a pledge to highlight the injustices of the death penalty in our coverage.