The Stench Gets Some Air Freshener

Yesterday, I wrote that the stench of politics had taken hold at the Justice Department when, at the last minute, it decided to deep-six a brief supporting the sound analysis of the Eleventh Circuit in a crack cocaine sentencing case and argue instead that the overall “intent” of two leniency-oriented statutes, the Fair Sentencing Act and the First Step Act, should displace their plain text.  A unanimous SCOTUS made short work of DOJ’s lame appeal to duck the words Congress chose in favor of a more Oprah Winfrey-like approach.  The only conceivable reason for the Department’s unprincipled, embarrassing and (fortunately) futile action was politics  —   specifically, that pro-drug and pro-criminal elements in the President’s political base simply wanted what they wanted.  That DOJ at its highest levels would so easily be chased away from a sober approach to its legal obligations is alarming.

I’m happy to report that, today, we saw a different face.

The NBC affiliate in Boston reports, “DOJ Seeks to Reinstate Death Penalty for Boston Marathon Bomber.”  The story begins:

The Department of Justice urged the Supreme Court to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev Monday, calling it “one of the worst” acts of terrorism on U.S. soil since Sept. 11.

Despite President Joe Biden’s public opposition to capital punishment, his administration supported an appeal first filed by his predecessor in a 48-page brief filed with the Supreme Court, which seeks to overturn a decision from a lower court to vacate Tsarnaev’s death sentence.

The death sentence was overturned last July by a federal appeals court that said the judge who oversaw the case did not adequately screen jurors for potential biases.

The case was first appealed by the Justice Department in October, while former President Donald Trump was still in office. It posed a test to Biden’s commitment to ending the federal death penalty, which Trump resumed after a nearly two-decade pause.

The Supreme Court said in March it would decide whether the death penalty can be reinstated for Tsarnaev. The court will likely hear the case in its term beginning next fall, with a decision expected by the summer of 2022.

Congratulations to President Biden, Attorney General Garland and Acting Solicitor General Prelogar for putting aside personal opposition to capital punishment (a relatively recent position for the President and the AG) and adhering to existing federal law, the decided views of the electorate, and the need, in any but the most unusual and compelling circumstances, to maintain consistent litigating positions, particularly in matters of criminal law, from one administration to the next.

UPDATE:  DOJ’s brief is here.