One of President-elect Joe Biden's campaign promises was to work to eliminate the federal death penalty, and he will face an early test of that promise as his administration reacts to President Trump's unprecedented flurry of executions and considers whether to ask the Supreme Court to reinstate the death sentences of Dzhokhar Tsarnaev, who was behind the 2013 bombings at the Boston Marathon finish line that killed three people and injured more than 200 others. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed to learn more about how Biden could react to the federal death penalty and what it could mean for the Boston Marathon bombing case. The transcript below has been edited for clarity.
Joe Mathieu: So set the table for us here to start: how the federal death penalty usually works and how the Trump administration has changed the traditional approach to it.
Daniel Medwed: So here's the backdrop. The federal death penalty was reinstated back in 1988, and it applies to a narrow band of cases with interstate or international ramifications, things like mass bombings, terrorist attacks and so on. Many people have been sentenced to death in federal court since 1988, but prior to Trump's arrival in the Oval Office, only three people had actually been executed; the last one occurred in 2003. But like so many things we've seen over the last four years, the Trump administration busted those norms. There have been 13 federal executions just since July, including several since the election, which is basically unprecedented — hasn't occurred in more than 100 years. The last one took place just early on Saturday when a 48-year-old man was executed.
Mathieu: As far as Joe Biden's stance on the death penalty goes, we've heard a lot about his tough on crime stance in the 90s. It was considered a liability in the campaign, but he has expressed opposition to the death penalty, shifting sentiment somewhat in recent years. Is it expected he will seek to abolish it after he takes office?
Medwed: I imagine this is how his process might unfold. Right out of the gate, he'll probably support Congress in seeking to eliminate the federal death penalty through legislation. A lot of Democratic lawmakers are already behind that. Relatedly, he'll probably try to appoint Supreme Court justices, if he has the chance, who are opposed to capital punishment, who might believe that it is a cruel and unusual punishment in violation of the Eighth Amendment. But while that process is unfolding, I think he'll probably issue a de facto moratorium, basically urging the Department of Justice and the Bureau of Prisons, our federal correctional apparatus, to hold off on actually implementing any executions. That's what President Obama did back in 2014 for the last couple of years of his term — created a de facto moratorium. One interesting side note here is that [Biden's] nominee for Attorney General, Merrick Garland, is no anti-capital punishment crusader. He was actually part of the federal prosecution team in the Oklahoma City bombing case, which culminated in one of those very few executions, that of Timothy McVeigh.
Mathieu: As far as the Boston Marathon bombing case goes, Daniel, we should probably remind [people] what the current status is before I ask you about it.
Medwed: Sure. So late last year, I believe it was over the summer, the First Circuit Court of Appeals, which is the federal appeals court here in Boston, reversed Dzhokhar Tsarnaev's death sentence — just the sentence, not the finding of guilt — and ordered a new sentencing trial on the grounds that the lower court judge didn't have a sufficiently thorough and robust jury selection process and that he should have let the jury hear more information about the violent tendencies of [Tsarnaev's] brother, Tamerlan. The Department of Justice under Trump responded quite predictably by seeking to reinstate the death sentence and filing what's called a petition for a writ of certiorari with the Supreme Court, asking the Supreme Court to take the case. What's interesting is that cert petition is technically still pending in the Supreme Court. And even last Friday, it was on the schedule for conference to be discussed. Nothing came of it, which has prompted me and a bunch of other armchair quarterbacks to speculate that the Supreme Court is holding off until they hear from Biden and learn what his position on the case is.
Mathieu: And what do you think that'll be?
Medwed: I think the most likely path, the one that's consistent with his campaign promise, is to withdraw the petition for review. The effect is that the case would go back for a new sentencing trial and then his administration would not refile death charges. The upshot being that Dzhokhar Tsarnaev will be in prison for the rest of his life, but not go to the execution chamber.
