Opinions Editor

Jim Dey is a staff writer for The News-Gazette. His email is jdey@news-gazette.com.

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In trouble

one day, and out the next.

That’s the story of President Joe Biden and the death penalty.

Although claiming to be a foe of the death penalty, Biden recently drew the ire of death-penalty opponents when his Justice Department filed a legal brief in support of the death penalty for the surviving Boston Marathon bomber.

That case remains pending before the U.S. Supreme Court, which will hear arguments this fall.

But the issue took a sharp turn last week when Attorney General Merrick Garland announced that he was suspending enforcement of executions.

Federal law permits death as a possible penalty, mostly in horrific murder cases. But Garland announced that the Biden administration, like the Obama administration before it, will not enforce the law.

The Trump administration, under the leadership of former Attorney General William Barr, overturned the Obama administration’s ban and carried out 13 court-ordered executions between July 2020 and January 2021.

Garland said he is suspending them for an undisclosed period of time — most likely for at least the duration of the Biden administration — during which the administration will review its policies and procedures.

He said the review is necessary to “ensure that everyone in the criminal-justice system is not only afforded the rights guaranteed by the Constitution and the laws of the United States, but is treated fairly and humanely.”

When it comes to this issue, it’s important to understand that Garland’s action applies only to criminal cases prosecuted in federal court and has no effect on state prosecutions.

Illinois banned the death penalty in 2011. Twenty-eight states permit capital punishment, while 22 do not.

The clear political trend, as demonstrated by the growing number of states that do not permit capital punishment, embraces abolition on grounds that range from moral objections to fears of wrongful convictions and executions.

There is irony in Garland’s decision because the Justice Department will continue to take the position that a jury’s decision to sentence Dzhokhar Tsarnaev to death should be upheld.

But if the U.S. Supreme Court should do so, prosecutors will not seek to carry it out as a consequence of Garland’s decision.

Tsarnaev, now 27, and his older brother, Tamerlan, carried out the 2013 Boston Marathon bombings that killed three people and wounded hundreds. They used pressure-cooker bombs placed near the finish line of the event that draws thousands of onlookers and participants.

Tamerlan Tsarnaev was subsequently killed in a shootout with police, but not before he and his young brother killed an MIT police officer.

Dzhokhar Tsarnaev told authorities he did not mourn his brother’s death because he had achieved martyrdom. But he is considerably less fortunate, still facing a possible death penalty while being held in the nation’s toughest federal prison — the super-maximum facility in Florence, Colo.

A federal appeals court overturned Tsarnaev’s death sentence because it said the trial judge did not ask sufficient question about jurors’ exposure to pretrial publicity. It also said the judge improperly barred evidence of Tamerlan’s criminal activities during the penalty phase of his brother’s trial.

The case is shot through with irony. Although the Obama administration suspended imposition of the death penalty, it was that administration’s decision to seek the death penalty in that case.

Biden’s record is similarly inconsistent. Although he has said he opposes the death penalty and welcomed Garland’s decision to suspend executions, Biden was largely responsible for dramatically expanding the possibility of executions under federal law.

During the Clinton administration of the 1990s, Biden, as chairman of the U.S. Senate Judiciary Committee, supported and oversaw the drafting of tough-on-crime legislation that dramatically increased penalties for drug crimes. The legislation “added 60 federal crimes for which someone could be put to death,” according to news reports.

Forty-six federal inmates remain under a death sentence, and abolitionist groups like the Federal Capital Habeas Project contended that Garland’s action is welcome but insufficient, urging Biden to commute all the death sentences.

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-393-8251.

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