Supreme Court will hear Boston bomber’s death case — if the Biden administration lets it

The Supreme Court has agreed to hear the government’s challenge to a federal appeals court’s vacating of the death sentence imposed on Boston Marathon bomber Dzhokhar Tsarnaev. The appeal was filed by the Trump Justice Department. So, will the Biden Justice Department maintain the appeal, or withdraw it?

Thus far, the White House has been its usual Delphic self: President Biden, it wants you to know, thinks capital punishment is bad. And, um, he thinks the Boston Marathon bombing was bad, too. 

I’m betting Attorney General Merrick Garland will find some opportune time to drop the case, quietly. 

The First Circuit’s reversal of the death sentence made no sense and was nakedly policy-driven — the familiar Lawyer Left hostility to capital punishment, which the judiciary predominantly shares. The rationale of the appellate panel, composed of one Reagan and two Obama appointees, was that the trial court’s examination of the prospective jurors, who’d been exposed to torrents of prejudicial pretrial publicity, was insufficient to ensure they could consider the death penalty fairly. Judge O. Rogeriee Thompson’s mammoth 200-page opinion intimates that the judge should have granted a change of venue.  

Yet, the panel upheld Tsarnaev’s convictions on 27 counts. It threw out three firearms convictions, but on technical legal grounds, not due to purported prejudice. Obviously, if Tsarnaev’s jury could not be relied on to decide the penalty impartially — i.e., based on only the evidence and the court’s legal instructions, rather than negative news stories about the terrorist Tsarnaev brothers — then it is not just the death sentence that should be voided. The jury was either fair or it wasn’t. If it wasn’t, then all of the convictions should be reversed. 

But the court didn’t do that. This is just activism. Indeed, Judge Thompson took pains to write, “Just to be crystal clear, Dzhokhar [Tsarnaev] will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.” This is a philosophical point, not a legal one. In effect: What’s the point in putting him to death when we’ve assured that he’s facing life imprisonment without parole?

That is not the court’s call to make. There is no credible argument that the death penalty is unconstitutional. The Fifth Amendment (applied to the states by the Fourteenth) provides that no person may be “deprived of life … without due process of law.” This endorsement of execution after a fair trial is bolstered by the Eighth Amendment, which prohibits “cruel and unusual punishments.” If death had been deemed cruel and unusual, the Framers would not have expressly permitted it after due process of law. Death sentences were imposed throughout the country after ratification of the Constitution and, later, the Fourteenth Amendment. It was commonly understood that our fundamental law does not forbid them.

That, of course, has nothing to do with whether the death penalty is good policy. Reasonable minds can differ on this question — in fact, I can attest that a single mind will often be ambivalent.

Reflecting the judicial animosity toward capital punishment, the Supreme Court has significantly narrowed application of the death penalty. It no longer applies, for example, to persons who were under 18 at the time of their offense, to the mentally impaired or to crimes that do not cause death to another person (except, perhaps, in the military justice context). Consistent with this trend, there remains the possibility, if not likelihood, that someday a liberal Supreme Court majority will rule the penalty unconstitutional, despite its patent constitutionality. They will rely on the Warren Court’s rewrite of the Eighth Amendment. Under this novation, unmoored from the amendment’s original understanding, a penalty must be deemed “cruel and unusual” whenever five robed lawyers find it offensive based on their perception of “the evolving standards of decency that mark the progress of a maturing society.” That is not constitutional law but the pretense of it — judicial legislation under the guise of adjudication. 

Still, the fact that capital punishment is constitutional does not mean it is necessary. 

At last count, the death penalty has been repealed in 22 states and the District of Columbia; it is moribund in many others. For 17 years, it was on hiatus in federal sentencing, until the Trump administration carried out 13 long-delayed executions in a matter of months. Congress could repeal the federal death penalty tomorrow. I daresay that if the razor-thin Democratic majority repealed the filibuster, it could end the penalty without much concern that Republicans would muster the votes to reenact it at some future point.

Let’s put morality to the side. It seems to me there are four main arguments from utility, two on each side of the question.  

First, the death penalty is applied to an infinitesimal percentage of murders. There is necessarily, then, an arbitrariness about its application. Here, I am not making the usual racial discrimination argument (which I believe is specious). I am saying that, for many heinous murders (and other crimes of cruelty), capital punishment is not even on the table; there is, therefore, unfairness inherent in its application to what is a negligible number of homicides — many of which are heinous, but some not as horrific as many murders for which severe prison sentences are thought sufficient punishment.

Second, the death penalty is extraordinarily resource-intensive, in ways seen and unseen. Obviously, capital cases are layered with prophylactic procedures that make them much more extensive and expensive than ordinary trials. Less noticed, but no less real, is the impact capital cases have on the rest of the justice system. The additional protections afforded to capital defendants usually mean the sentencing proceedings are unobjectionable. But because judges are hostile to the death penalty, this means issues in the guilt phase of the trial get more scrutiny than in ordinary cases. The resulting precedents apply to all criminal cases, not just homicides. If you’re a “glass half-full” type, you happily say this only enhances the quality of justice. Maybe, but it also increases the costs of doing justice.

On the other side of the coin, the death penalty is the only way to stop the worst offenders from preying on society. I reluctantly came to this conclusion in handling terrorism cases. Convicted jihadists become iconic figures who help their atrocious organizations recruit and raise funds; some can command mass-murder attacks from their confinement. A similar challenge is posed by high-ranking and otherwise violent criminals, most already serving long sentences, who kill prison guards and other inmates.

Finally, the main argument against the death penalty is that life imprisonment without parole is an adequate punishment, as the First Circuit stressed in Tsarnaev’s case. But if there were no death penalty, it would not be long before life imprisonment without parole was attacked as a “cruel and unusual punishment.” Invariably with progressive activists, the harsh penalty, which purportedly obviates the need to impose the harsher penalty, itself becomes too harsh once the harsher one is repealed. If you think, as I do, that we need the penalty of life imprisonment without parole even if we never execute another murderer, we would still need capital punishment on the books in order to preserve it. Otherwise, it’s a race to excessive leniency, which will encourage ever more violent crime.

Congress should grapple with these tough issues. I’m wagering that, in Tsarnaev’s case, the Supreme Court will not get the chance.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.