Suffolk Law Professor Calls Biden Admin’s Support For Tsarnaev Death Penalty ‘Inconsistent’

On GBH's Boston Public Radio Monday, Suffolk University Law professor Renée Landers acknowledged a disconnect between President Biden’s public stance opposing federal death penalties and the actions of his own Justice Department, which is currently asking the Supreme Court to reinstate that penalty for convicted Boston Bomber Dhokhar Tsarnaev.

“I don’t fully understand it,” she told hosts Jim Braude and Margery Eagan, adding later that the situation “seems rather inconsistent with President Biden’s fundamental opposition to the death penalty.”

In the case of Tsarnaev, the DOJ is asking the nation’s highest court to overturn a 2020 decision by the 1st Circuit Court of Appeals to vacate the 28-year-old’s death sentence on procedural grounds.

“I think there are two possible rationalizations,” Landers said. “One is that they’re just trying to uphold what the historical position of the Justice Department has been in this particular case, and not [flip-flop] on particular cases because of a change in administration.”

In October 2020, then-President Trump's Justice Department first appealed the ruling by the 1st Circuit Court of Appeals. The reaffirmation by Biden's administration came in June of this year.

The second justification Landers offered was the possibility that the administration fears bad optics ahead of the 2022 midterm elections.

“I think sometimes Democrats are very wary of appearing to be soft on crime,” she said. “Here we have a specific case, obviously a very heinous crime… I think that that could be an additional motivating factor.”

During his presidential campaign, then-candidate Biden was firm in his stance against the death penalty. On his campaign website, he outlined his intentions as such: “Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”

And though Biden hasn’t offered public comment on the issue since taking office, White House Press Secretary Jen Psaki told reporters in March that he continues to have “grave concerns” about whether federal executions are consistent with “the values that are fundamental to our sense of justice and fairness.”

Even if the conservative-leaning Supreme Court sides with the Biden administration’s request, Landers noted that Tsarnaev would still be protected by Attorney General Merrick Garland’s temporary moratorium on federal executions. But, she said, that wouldn’t prevent a future president (or Biden himself) from lifting that moratorium down the line.

“A subsequent president could actually carry out an execution,” she acknowledged.

Though there's plenty of uncertainty surrounding the case, Landers noted one definite: if Tsarnaev is moved to death row, he's likely remain there for years or decades, where his fate will continue to fuel headlines and public discourse.

“From time to time, there will be public comment on it,” she said. “I think in some ways, saying ‘no death penalty, life in prison without parole’ might just make it the end of the story.”