If Biden Is Serious About Ending the Death Penalty, He Should Start Commuting Sentences

President Joe Biden promised he would end the federal death penalty during his campaign. Last Friday, the Supreme Court sent him a message: They’re not going to do it for him.

In a 6-3 ruling, the Supreme Court restored the federal death penalty sentence against Dzhokhar Tsarnaev for his role in assisting his brother, Tamerlan, in orchestrating the Boston Marathon Bombing in 2013.

Tsarnaev had been sentenced to death by a jury, but in 2020 the U.S. Court of Appeals First Circuit threw out the capital sentence. The judges determined that the judge overseeing sentencing erred by not adequately screening the jurors for how much media they had consumed about Tsarnaev and whether they had already developed an opinion about him. In addition, Tsarnaev had tried to convince the jury to spare him by pointing the finger to his brother (who died when the two of them were fighting and attempting to flee from police) as the mastermind. The judge allowed the defense but did not allow the introduction of evidence that showed Tamerlan may have previously been involved in a triple homicide in Waltham, Massachusetts. The Court of Appeals ruled the judge abused its discretion here and ordered a new sentencing trial.

At the same time that Tsarnaev’s lawyers were going through the lengthy process of appealing his sentence, Biden was campaigning for the presidency. As part of his criminal justice reform platform (and part of the 2020 Democratic Party’s platform), he promised to support the elimination of the federal death sentence.

Then Biden won, and remarkably, his Department of Justice turned to the Supreme Court to defend the death penalty sentence for Tsarnaev and lobbied for it to be restored. On Friday, the Supreme Court ruled accordingly in a pretty clear ideological split, with only Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

To be clear, the appeals court had only ruled that a new sentencing trial needed to take place. Tsa