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Death penalty opponents stage protest

Abe Bonowitz of Death Penalty Action, an execution abolitionist group, protests near the Terre Haute Federal Correctional Complex where death row inmate Wesley Ira Purkey was scheduled to be executed by lethal injection in July 2015. The Biden administration is seeking the death penalty in the Boston Marathon bombing case, frustrating opponents of capital punishment. (Photo by Jeremy Hogan/SOPA Images/LightRocket via Getty Images)

After Campaigning Against Death Penalty, Biden Admin Seeks Execution of Boston Marathon Bomber

Advocates say the president could eliminate the use of the death penalty by commuting all federal death row sentences.

Julia Conley

Capital punishment opponents called on President Joe Biden to take executive action to eliminate the use of the federal death penalty after his Justice Department said the penalty should be reinstated in the case of the 2013 Boston Marathon bombing. 

Biden's election last November offered relief to anti-death penalty campaigners amid the Trump administration's "execution spree" in which the U.S. government put 10 people to death last year, but death penalty opponents now say the president's failure to provide an official administration policy on the matter has left an opening for the DOJ to continue seeking capital punishment despite Biden's stated opposition. 

"What is the administration's policy with respect to the federal death penalty? The administration has not answered that yet." —Robert Dunham, Death Penalty Information Center

In a brief filed Monday, DOJ officials said the penalty should be reinstated in the case of Dzhokhar Tsarnaev, who was convicted in 2015 of killing three people and injuring hundreds when he bombed the finish line of the Boston Marathon two years earlier.

Tsarnaev originally was sentenced to death, but the U.S. Court of Appeals for the 1st Circuit ruled last year that the sentence should be vacated because the trial court had not screened jurors for possible bias and had not considered evidence that Tsarnaev had been influenced by his brother, who was allegedly involved in a murder prior to carrying out the bombing. 

On Monday, the DOJ told the U.S. Supreme Court that the "determination by 12 conscientious jurors [in favor of the death penalty] deserves respect and reinstatement by this Court."

Lawyers for the Biden administration also argued last month in favor of the death penalty for Dylann Roof, who killed nine people at an historically Black church in Charleston, South Carolina in 2015. 

Daniel Nichanian of The Appeal noted the distance between Biden's rhetoric on the campaign trail last year, when he called to eliminate the death penalty, and the recent actions of the administration.

"This move from the DOJ contravenes the president's vow to work with Congress to abolish the federal death penalty," Kristina Roth, a senior advocate in Amnesty International USA's criminal justice program, told The Hill.

A full repeal of the federal death penalty would require legislation passed by Congress, without which the decision to seek capital punishment ultimately lies with the Justice Department.

But a clear statement from Biden regarding his administration's policy on the death penalty could ensure his Justice Department lives up to his campaign promises, said critics. 

Robert Dunham, executive director of the Death Penalty Information Center, told The Intercept that the president should commute all sentences on federal death row and call on Attorney General Merrick Garland to direct federal prosecutors not to seek capital punishment. 

"He can do that today, he can do that tomorrow,” Dunham told The Intercept. "But the longer that he does nothing about it, particularly if the Department of Justice continues to defend existing death sentences with classically pro-death penalty rhetoric, the more his campaign promises look like empty words."

"What is the administration's policy with respect to the federal death penalty?" Dunham added. "The administration has not answered that yet."

At his confirmation hearing in February, Garland told senators he has "great pause" regarding capital punishment and that he expected Biden to "be giving direction in this area," likely resulting in a "return to the previous [moratorium] policy."

"Disappointingly, to date there has been no such guidance despite President Biden's campaign promise to work to end the federal death penalty," Cassandra Stubbs, director of the ACLU's capital punishment project, told The Hill. 

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