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.”