In Boston, the Justice Department is asking judges to uphold the death sentence for marathon bomber Dzhokhar Tsarnaev. A New York City jury is asking for the death penalty for a man who killed eight people in an attack on a bike lane.
President Joe Biden has pledged to work towards abolishing the federal death penalty but has not taken any serious steps in that direction. The Justice Department continues to push for the death penalty in some cases, even though it has put in place a moratorium that means federal executions are unlikely to happen anytime soon.
In a filing Tuesday, federal prosecutors said they would not be looking for him for Patrick Crusius, a 24-year-old accused of killing nearly two dozen people in the 2019 West Texas racist Walmart attack.
Abolitionists say the mixed signals from the administration and the silence of Biden – the first president to openly oppose the death penalty – prove that the Democrat has not delivered on the campaign promises that so rekindled their hopes.
Others say his inaction makes it more likely that a future president will resume federal executions, as President Donald Trump did in 2020 after a 17-year hiatus. With 13 executions on death row in Terre Haute, Indiana, in his last six months in office, Trump has directed more federal executions than any other president in more than 120 years.
“The Biden administration does not seem to understand that inaction, if continued, will lead to executions,” said Robert Dunham, who heads the non-partisan Death Penalty Clearinghouse in Washington, DC. administration. But it will be Biden’s executions.”
A White House email on Wednesday said the president “has long spoken about his concerns about how the death penalty is administered and whether it is in line with the values that underpin our sense of fairness and fairness,” and he supports the attorney general’s decision to impose a moratorium.
“The Department of Justice makes decisions about prosecutions on its own. It would be inappropriate for us to weigh specific cases, but we believe it is important that victims, survivors and their families achieve justice, ”the message says.
Here is a look at the federal death penalty under the Biden administration:
WHAT ABOUT THE ONGOING DEATH PENALTY CASES?
Under Merrick Garland, the Justice Department did not require the death penalty in any new case. He also withdrew requests for the death penalty that had been requested by previous administrations for more than two dozen defendants.
But this month, U.S. Attorneys opened a death warrant in New York for Saifullo Saipov, who is accused of using a truck to mow down pedestrians and cyclists on a bike path near the Hudson River in 2017. The decision to seek death was made under Trump, but Garland allowed his prosecutors to continue to seek it.
Lawyers for the Justice Department are also seeking to uphold Tsarnaev’s death sentence for the 2013 bombing that killed three people near the finish line of the Boston Marathon. Tsarnaev is making fresh attempts to avoid execution after the U.S. Supreme Court reinstated his death sentence last year.
Dunham praised the Biden White House for not wanting to interfere with the Justice Department’s day-to-day decision-making, but said there was nothing wrong with the White House setting a general policy on executions.
“They don’t seem to understand that if you set the policy, it’s not interference,” Dunham said last week. “This is the setting of the principle by which decisions are made. … They have not succeeded at all in establishing political guidelines for the death penalty.”
WHAT MEASURES DOES BIDEN TAKEN?
Despite his campaign promise, Biden himself has not issued any official directives or policy statements regarding the federal death penalty. During the campaign, he also pledged to work towards the abolition of the death penalty in all states. He is also silent about this.
His administration’s most notable move was Garland’s announcement in 2021 of a halt to federal executions, which had been reinstated by Biden’s Republican predecessor. The Justice Department will not issue execution orders for anyone, at least while the moratorium is in place.
But that doesn’t stop the department from seeking the death penalty. And this does not stop US Attorneys from continuing to fight lawsuits from death row inmates trying to avoid execution.
Garland’s moratorium is similar to the moratorium imposed in 2014 by President Barack Obama following a failed state execution in Oklahoma. Death penalty opponents say the fact that Obama hasn’t taken more far-reaching action on federal executions has left the door open for Trump to resume them.
Trump officials have argued that carrying out the executions was a long-delayed matter of upholding U.S. law and bringing justice to the relatives of the victims.
WHAT IS A MORATORIUM VERIFICATION?
The Justice Department did not provide details, including end goals or timelines. When asked how long the moratorium could last, Department spokesman Joshua Steve replied in an email that the review was ongoing.
Garland said the review will look at protocols put in place by Trump Attorney General William Barr. Lawyers for those on death row have criticized the protocols, saying they allow for hasty executions.
What the review does not entail is an assessment of whether the federal death penalty should be completely abolished.
In September, the Justice Department issued a public notice asking for comment on changes to Trump’s protocols, including one allowing execution methods other than lethal injection, such as firing squad.
HAVE ANY PROTOCOLS OF THE TRUMP AGE BEEN REMOVED?
No, although they are of no practical use while the moratorium is in effect.
In a recent letter, Democratic Rep. Ayanna Pressley and Senator Dick Durbin called on the Justice Department to quickly quash all Trump protocols, including a protocol authorizing the use of government agencies and personnel in federal executions, calling the orders “irreparably tainted.”
Another authorizes the use of a single drug, pentobarbital, instead of the three-drug cocktail used in the 2000s, the last time federal executions took place before Trump.
The replacement was needed after drug companies began banning torturers from using their drugs, claiming they were meant to save lives, not take them. Barr’s Department of Justice chose pentobarbital despite some evidence that pentobarbital causes pulmonary edema, a painful sensation similar to drowning when the liquid enters the lungs.
Most critics of the death penalty have reacted to the moratorium and revision with mild praise at best, calling it a first step.
Dunham also noted that focusing on protocols has limited impact, also because any changes could easily be reversed by a future administration.
In their current form, he said, “Biden’s reforms aren’t worth much more than the paper they’re written on.”
WHAT DO THE OPPOSITORS OF THE DEATH PENALTY WANT TO DO?
They say Biden should use his presidential powers to commute all federal death sentences to life in prison, which would prevent the reinstatement of those death sentences.
It is also proposed to pass legislation to remove the death penalty from US law and to resentence more than 40 prisoners still on federal death row to life in prison. Biden gave no indication that he supported any such measures.
This issue is sensitive for Biden. In 1994, then Senator. Biden pushed legislation through Congress that added 60 additional crimes for which someone could be executed. Some inmates executed under Trump have been sentenced under these provisions.
Abolishing the federal death penalty would mean saving the lives of killers like Dylann Roof, the white supremacist who in 2015 shot and killed nine black members of a South Carolina church during a Bible study. Biden could find an excuse for this politically inconvenient.
The death penalty has been a hot political issue in the past, but it has become less relevant now as support for the death penalty has fallen in recent decades. According to most polls, it currently has around 50% support.
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