White House Reasserts Opposition to Death Penalty, Stresses Independence of Justice Department as DOJ Asks Supreme Court to Reinstate Death Sentence in Boston Marathon Bombing

As the Department of Justice filed a brief in the U.S. Supreme Court seeking reinstatement of the death sentence imposed on Dzhokhar Tsarnaev in the Boston Marathon bombing, the White House press office issued a statement stressing the independence of the Department over the cases it is pursuing and asserting that President Joe Biden has not backed away from his campaign promise to work to end the federal death penalty.

On June 14, 2021, Department of Justice lawyers filed the government’s initial merits brief in the Supreme Court asking the court to reverse a 2020 federal appeals court decision that had overturned Tsarnaev’s death sentence. In a pleading that incorporated language nearly verbatim from briefs previously filed by the Trump Department of Justice, federal prosecutors wrote that the U.S. Court of Appeals for the First Circuit had “improperly vacated the capital sentences recommended by the jury in one of the most important terrorism prosecutions in our Nation’s history” and that undoing the appeals court’s decision would “put this case back on track toward a just conclusion.”

One day later, a White House spokesman disassociated the President from the prosecutors’ actions, citing the Justice Department’s “independence regarding such decisions.” In a email to reporters on June 15, Deputy White House Press Secretary Andrew Bates wrote, “President Biden has made clear that he has deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of justice and fairness. … The President believes the Department should return to its prior practice, and not carry out executions.”

The DOJ brief provoked a range of disconsonant responses. A number of liberal publications interpreted the filing as representing the official policy of the Biden administration and a retreat from the President’s campaign promise. “Biden broke his promise and failed his first death penalty test in a very big way,” Professor Austin Sarat wrote in a Slate commentary. HuffPost reported: “The new DOJ filing to the Supreme Court undermines what Biden has publicly said about ending the death penalty.” Fox News on the other hand viewed the filing and White House response as suggesting internal discord, describing the press office’s statement as “the latest in a recent string of instances where the White House has pointed to the DOJ’s independence while openly criticizing them.”

Death Penalty Information Center director Robert Dunham described the incongruity between the DOJ action and the White House response as fulfilling one campaign promise — to restore the integrity and independence of the Justice Department — while failing to take action on another. “There’s less to this than meets the eye,” Dunham told The Intercept. During his confirmation hearings, Attorney General Merrick Garland indicated that if the White House set a policy on the death penalty, the Department of Justice would follow it. “What is the administration’s policy with respect to the federal death penalty?” Dunham asked. “The administration has not answered that yet.”

As a result, the DOJ continues to respond to death penalty prosecutions on a case-by-case basis. It has appeared in a federal appeals court to defend the death sentence imposed on Charlestown church shooter Dylann Roof and asked the U.S. Supreme Court to reverse the appeals court decision in Tsarnaev’s case. But it also has asked a federal appeals court to return an important habeas corpus case to the DOJ so the Department can reconsider Trump administration rulemaking that would sharply curtail Arizona death-row prisoners’ access to federal review of their convictions and death sentences and has rescinded death-penalty authorization in a half-dozen cases in which the Trump administration was pursuing capital punishment.

Simply not carrying out executions does not fulfill the campaign promise to end the federal death penalty, Dunham said. “It sets the table for the next president to carry out more executions.” Part of ending the death penalty, veteran capital defense lawyer David Bruck told HuffPost in January, would be to direct the Justice Department to stop seeking and defending death sentences in federal cases. Another essential part, death penalty opponents say, is to commute the sentences of everyone of the federal death row.

“He can do that today, he can do that tomorrow,” Dunham said. “But the longer that he does nothing about it, … the more his campaign promises look like empty words.”