Candidate Joe Biden campaigned as an opponent of the death penalty, but President Joe Biden’s Justice Department was at the Supreme Court on Wednesday fighting to reinstate a death sentence in the case of one of the 45 people left on federal death row after the Trump administration’s execution spree.
The Biden administration’s arguments could make it easier for conservative justices to restrict criminal defendants’ rights to a fair trial.
The administration favors the execution of Dzhokhar Tsarnaev, the younger of the two brothers who carried out the 2013 Boston Marathon bombings that left three dead, hundreds injured and a city and nation traumatized.
Regardless of your feelings about this particular case, Supreme Court rulings affect all of us and in all cases. And in this case, the Biden administration’s arguments at the high court could make it easier for the conservative justices to restrict criminal defendants’ rights to a fair trial. The Biden administration’s position is an abdication of the principles on which Biden ran — and provided further evidence that prosecutors, regardless of party, too often will choose protecting convictions and sentences over justice.
Deputy Solicitor General Eric Feigin advanced two points Wednesday. He asked the justices to rule in a way that would make it harder for those facing the death penalty to find out what potential jurors already knew about the case from pretrial media coverage and make it easier during the sentencing phase of a capital case for the government to keep out evidence that might make jurors more likely to reject a death sentence.
The judge in Dzhokhar Tsarnaev’s federal trial regarding his role in the bombings did both of those things: denied the defense’s request to ask the potential jurors about the content of media they had taken in and later granted the federal government’s request to keep out evidence alleging that older brother Tamerlan Tsarnaev had committed, and possibly been the ringleader behind, other killings prior to the marathon bombings.
In 2020, an appeals court ruled that both of those decisions were wrong, upholding several life sentences Dzhokhar Tsarnaev had been given but ordering a new sentencing phase on the counts where he had been sentenced to death.
There is no question about the horror or tragedy of the bombings or about the toll they have taken. At trial, Dzhokhar Tsarnaev’s lawyer didn’t deny he had committed “virtually all of the acts charged,” as the Justice Department acknowledged in its brief to the justices. As Ginger Anders argued for Dzhokhar Tsarnaev on Wednesday, the “only argument” that Dzhokhar Tsarnaev made was in the sentencing portion of the trial, and that argument focused on “whether he was indoctrinated at Tamerlan’s instigation and whether Tamerlan was more likely to lead.”
Biden told voters he opposes the death penalty. If he opposes it, then he must stop putting people on death row.
These issues can feel more nuanced than big issues about whether we should have the death penalty at all, so they can seem less significant. But they are, in fact, fundamental questions about whether we truly have a system that puts those facing criminal charges through a fair trial.
Before we get to that, though, it’s worth pointing again out that Biden told voters he opposes the death penalty. If he opposes it, then he must stop putting people on death row. It really is that simple.
But even on these more nuanced questions, the Biden administration is taking us in the wrong direction.
“This Court has said over and over again … that more evidence should come in at the capital sentencing phase, not less,” Anders argued for Dzhokhar Tsarnaev on Wednesday. The Biden administration would have it otherwise, arguing that the evidence in question about Tamerlan Tsarnaev’s alleged past crimes was “unreliable hearsay” that would have confused the jury and taken up too much time.
While Anders was arguing for Dzhokhar Tsarnaev that the pretrial ruling meant lawyers for both sides and the judge were prevented from “learn[ing] whether jurors had been exposed to inadmissible and inflammatory publicity that could prejudice their consideration of the death penalty,” the Biden administration lawyer argued it was enough that the jury was “repeatedly admonished to disregard pretrial publicity” and asked about “potential bias” and “sources” of pretrial publicity, but not the content of it. Feigin was, unsurprisingly, helped along in his arguments by several of the more conservative justices. But they’d have had no one to help along if the Biden administration hadn’t decided to make the arguments in the first place. Although the Trump administration asked the justices to hear the case, the Biden administration did not take the step to drop the appeal once Biden took office, as it did in several other cases. In mid-June, long after Biden and even Attorney General Merrick Garland had taken office, the Justice Department filed its “merits” brief — continuing the Trump administration’s arguments and urging the justices to “put this case back on track toward a just conclusion” — that is, the execution of Dzhokhar Tsarnaev. Accepting the appeals court’s ruling wouldn’t even mean Dzhokhar Tsarnaev couldn’t be executed; it simply would have required a new sentencing phase, with a new jury, on those counts. Taking such a step would have prevented Wednesday’s arguments and the potential for the conservative majority to issue a ruling that binds the nation to more restrictive rules in future capital trials and could even have implications for other, noncapital cases. Beyond trying to protect their conviction and sentence, it’s hard to see why a prosecutor seeking justice would make that decision.
Chris Geidner
Chris Geidner is a journalist and MSNBC columnist whose Law Dork newsletter covers the Supreme Court, law and politics. His more than two decades in journalism include widely recognized coverage of LGBTQ issues, the criminal legal system and other complex legal and political questions. Geidner also contributes to Grid and Bolts and previously worked as the Supreme Court correspondent and legal editor at BuzzFeed News, as well as for The Appeal and Metro Weekly. 
