US government arguing for A death sentence while arguing against THE death sentence; does US Supreme Court Justice Barrett have a point?

Question

ABC News's Justices divide sharply on reinstating Boston Marathon bomber death sentence begins:

Reciting the gruesome details of the 2013 Boston Marathon bombing and its violent aftermath, an attorney for the Biden administration on Wednesday asked the U.S. Supreme Court to reinstate the death sentence for Dzhokhar Tsarnaev, arguing that a federal appeals court overstepped its authority in tossing out a jury's unanimous decision to impose capital punishment for the heinous crime.

and later says:

Midway through the government's argument for reinstating Tsarnaev's execution, Justice Amy Coney Barrett called attention to one of the overarching contradictions in the case: the government is arguing for a death sentence while it has stopped carrying them out.

"I'm wondering what the government's end game is here?" Barrett asked of Feigin. "The government has declared a moratorium on executions, but you're here defending his death sentences. And if you win, presumably, that means that he is relegated to living under the threat of a death sentence that the government doesn't plan to carry out. So I'm just having trouble following the point."

This would not be the first time a politician or a political administration talks out of both sides of its mouth at the same time, if that's what's happening here.

Question: Is the Biden administration's pursuit of a death sentence for one individual after also placing a moratorium on federal executions patently contradictory? Does each reduce the credibility of the other? Or is there a consistent position compatible with both?

Answer 1

Well, at the very least Eric Feigin - the Deputy Solicitor General who responded to Barrett's question - argued that the positions aren't contradictory. The administration's position is that the current moratorium on executions is in place to enable a review of the current execution protocol, that the judgement of the jury in the first instance should be respected, and that if the death penalty is re-imposed by the Supreme Court, there will be further delays before any execution would be carried out anyway - allowing said review to be completed.

Well, Your Honor, the administration continues to believe the jury imposed a sound verdict and that the court of appeals was wrong to upset that verdict.

If the verdict were to be reinstated eventually, which will require some further proceedings on remand, there would then be a round of collateral review, some time for reviewing any clemency petitions.

Within that time, the Attorney General presumably can review the matters that are currently under review, such as the current execution protocol, and what we are asking here is that the sound judgment of 12 of Respondent's peers that he warrants capital punishment for his personal acts in murdering and maiming scores of innocents, and along with his brother, hundreds of innocents at the finish line of the Boston Marathon should be respected.
_{Oral Arguments 54:3-21}

In addition, the government's case is to argue that the court of appeals firstly, 'erred in applying an inflexible voir-dire rule to invalidate the jury's penalty verdict', and secondly, 'erred in deeming the district court's handling of the penalty-phase evidence to be a basis for vacatur' - so the case could be framed as more an attempt to ensure that future federal juries' verdicts are respected, rather than an attempt to apply the death penalty in this specific case.

Whitehouse Press Secretary Jen Psaki has been asked twice about this specific situation, on March 22nd and October 12th. She initially reinforced that President Biden "has grave concerns about whether capital punishment, as currently implemented, is consistent with the values that are fundamental to our sense of justice and fairness", while noting that he has "expressed his horror at the events of that day and [Tsarnaev's] actions" and in both cases referred the questioner to the Justice Department, which as far as I can tell, has not given any explanation for this apparent contradiction.

Answer 2

1. There is US precedent for executing purely domestic politically motivated terrorists, i.e. Timothy McVeigh.
2. The US government regularly employs de facto death sentences as foreign policy, e.g. drone strikes, etc. Here the government's thinking might be that because the Tsarnaevs considered themselves political retaliators against such US foreign policies, those same policies should for that reason apply to them.

If those lines of reasoning correctly reflect the government's thought, then it follows that if we imagine that the Tsarnaevs were, (like most American serial murderers), instead pathological apolitical sadists, the government would not be arguing for a death sentence. Or if the Tsarnaevs were Boston contract assassins whose bomb detonated before it reached its actual target, the government also might not be arguing for a death sentence.

Answer 3

I haven't followed all the developments in the Biden administration suspension of the death penalty, but some of the concerns seem to be about methods rather than whether it should ultimately resumed at all:

US Attorney General Merrick Garland has ordered a moratorium on federal executions while the Justice Department continues its review of the death penalty, the department said in a statement. [...]

Garland said on Thursday [July 1] that he was directing Deputy Attorney General Lisa Monaco to lead a review that will assess, among other things, the Justice Department’s 2019 single-drug protocol as well as “the risk of pain and suffering associated with the use of pentobarbital”.

The review will also scrutinise changes the Justice Department made to its regulations in November 2020 that expanded the methods it could use to carry out executions.

The DOJ press release at the time also emphasized these reasons:

In the last two years, the department made a series of changes to capital case policies and procedures and carried out the first federal executions in nearly two decades between July 2020 and January 2021. That included adopting a new protocol for administering lethal injections at the federal Bureau of Prisons, using the drug pentobarbital. Attorney General Garland’s memorandum directs the Deputy Attorney General to lead a multi-pronged review of these recent policy changes, including:

A review coordinated by the Office of Legal Policy of the Addendum to the Federal Execution Protocol, adopted in 2019, which will assess, among other things, the risk of pain and suffering associated with the use of pentobarbital.

• A review coordinated by the Office of Legal Policy to consider changes to Justice Department regulations made in November 2020 that expanded the permissible methods of execution beyond lethal injection, and authorized the use of state facilities and personnel in federal executions.
• A review of the Justice Manual’s capital case provisions, including the December 2020 and January 2021 changes to expedite execution of capital sentences.
• The Attorney General’s memorandum requires the reviews to include consultations with a wide range of stakeholders including the relevant department components, other federal and state agencies, medical experts and experienced capital counsel, among others.

No federal executions will be scheduled while the reviews are pending.

It may have been just politically convenient to suspend it for this reason/pretext, and the Biden administration might not actually plan to resume it while in power, but I haven't found statements to that effect (yet).

Also, worth noting perhaps, the appeal on Tsarnaev's sentence was actually initiated by the DOJ while Trump was still president. As noted in the Hill on July 22, Biden's DOJ did move to no longer call for the death penalty in some 7 cases that were also initiated under Trump. So perhaps they consider Tsarnaev's case exceptional (for either legal or political reasons).

Biden himself said as a campaign promise he'd help pass a law to end the death penalty, but that could also be seen as a bit of a way to give something to the death-penalty abolitionists in his party while probably knowing full well that such a law would be hard to pass due to the continued popularity of the death penalty with the US public, even if it's trending down. (A bill like that has died numerous times in committees.)

And if only look to what happened last year with the election, the DOJ doesn't always just go with the president's wishes...

Answer 4

This is a fairly complex, nuanced case. You are correct in mentioning that there seems to be a contradiction or even paradoxical reasoning behind the rhetoric that is coming from both the executive and judicial branches. I don't think that is bad, actually- even though it is this type of game that is played to conserve political capital. Which means that it is politically expedient in the sense that it will outrage fewer people on the extremes of "eye for an eye" pro death-penalty crowd as well as the "whole world blind" no death-penalty crowd.

It is interesting how both Biden (leftist) and Bennett (Israel's PM, ultra right-wing) do a lot of posturing to satisfy their bases, yet actually make real concessions towards their political rivals. In the Tsarnaev case, that means Biden supports the moratorium on the death-penalty "in theory", but not in practice.

Often compromise appears two-faced, and sometimes it is. However, our country is in a fairly unique situation now with the rift between the conservative and liberal tribes approaching Civil War levels of animosity. (The 60s and 20s were also this bad, or worse.) By throwing down a lot of weight on either side (especially on the liberal side), Biden would be seen as a "dangerously weak strong-man"; and the counter-punch to that belief would probably result in even more escalation between our two constellations of political identity.