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Erwin Chemerinsky: Biden’s death penalty hypocrisy

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Erwin Chemerinsky

The Biden administration is hypocritical in simultaneously imposing a moratorium on the federal death penalty and urging that the Supreme Court reinstate the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev. Indeed, the Biden administration’s choice to defend capital punishment for Tsarnaev reflects the inherently arbitrary nature of death penalty decisions.

For 17 years, under both Republican and Democratic presidents, there was a hiatus in executions carried out by the federal government. The Trump administration, though, aggressively changed course and carried out 13 executions. This was more than in the previous seven decades combined. No president in more than 120 years had overseen as many executions of federal prisoners as Donald Trump.

As a candidate for president, Joe Biden said he opposed the federal death penalty. Therefore, it was no surprise when Attorney General Merrick Garland, on July 1, announced a moratorium on executions by the federal government. 

In light of this acknowledgment, it is puzzling that the Justice Department is urging the Supreme Court to uphold the death penalty for Tsarnaev. Dzhokhar and his brother Tamerlan were responsible for the bombing at the Boston Marathon in 2013 that killed three people and injured hundreds of others. Tamerlan was killed by police, but Dzhokhar was tried for murder and sentenced to death.

The death penalty was removed via an appeal. In going to the Supreme Court, the administration had to engage in a review of the case and decide that a death sentence was appropriate for Tsarnaev, despite the appellate court’s careful analysis of the serious flaws of the sentencing phase. In fact, the Justice Department, in its briefs and arguments to the Supreme Court, offered no compelling explanation of why execution is warranted in this case as opposed to other cases.

The death penalty is imposed in an arbitrary and unprincipled manner, it is disproportionately used against people of color, and there have been many instances of innocent people being wrongly convicted and sentenced to death.

Biden understands this well. Instead of defending a death sentence in court, he should end the use of the federal death penalty and commute all capital sentences to life in prison, including that of Dzhokhar Tsarnaev.

Erwin Chemerinsky is dean of the UC Berkeley School of Law.

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