Democratic presidential nominee Joe Biden has been silent on the news that Boston Marathon bombing perpetrator Dzhokhar Tsarnaev will need a new trial in order to be executed—a trial Biden's Justice Department would prosecute, if the Democrat is elected.
The overturning of Tsarnaev's capital sentence has gone unmentioned by Biden's campaign in press releases and on social media since Friday's ruling. The campaign also did not respond to inquiries from the Washington Free Beacon as to whether Biden would pursue the death penalty for Tsarnaev if elected.
The ruling and Tsarnaev's crime also went unmentioned in Biden's Sunday remarks on the anniversary of the El Paso Walmart shooting. During that event, according to text of his comments released by the campaign, Biden emphasized the need to fight white supremacy and push for gun control, but did not discuss specific penalties for shooting perpetrator Patrick Crusius, who is currently facing multiple capital charges.
Biden's silence on the issue is a stark contrast with President Donald Trump, who has condemned the ruling and called for a "do-over" trial for Tsarnaev. It is also a marker of how Biden—who supported the death penalty throughout his time in the Senate—has shifted left on both capital punishment and criminal justice during his latest run for the presidency.
"Dzhokhar Tsarnaev committed one of the ‘worst domestic terrorist attacks since the 9/11 atrocities,' and President Trump is calling for swift justice on behalf of the American people," Trump campaign spokeswoman Courtney Parella told the Washington Free Beacon. "After flip flopping on his support for the death penalty, Joe Biden is now noticeably silent as justice is being ripped away from the families and friends who lost their loved ones in this heinous massacre. Biden is proving once again that in his America, criminals will not be held accountable for their crimes."
Tsarnaev's execution was thrown into question on Friday, when the First Circuit Court of Appeals vacated the death sentence and referred the case back to the lower District court. A three-judge panel—a Reagan appointee and two Obama appointees—ruled that District Judge George O’Toole erred in denying Tsarnaev's request to find a new venue for the trial and not adequately questioning potential jurors as to whether their exposure to information about the bombing before the trial limited their ability to be impartial.
Tsarnaev would need to be retried only for the second part of the two-phase death penalty trial, in which a jury distinct from the one that determined his guilt rules on whether his crime merits execution. Whether a new capital trial will be held is partly at the discretion of the Department of Justice, which prosecuted Tsarnaev. If one is not, the court noted in its ruling, Tsarnaev will still face multiple life sentences, served at the federal "supermax" high-security facility in Florence, Colo.
The remand means that whether Tsarnaev is executed is at the discretion of federal prosecutors—who would ultimately report to Biden should he be elected.
Trump has made clear his disdain for Tsarnaev, whom he called on Friday "the animal that killed so many people during the Boston Marathon." He doubled down over the weekend, writing on Twitter that "rarely has anybody deserved the death penalty more than the Boston Bomber, Dzhokhar Tsarnaev" and adding that "the Federal Government must again seek the Death Penalty."
Tsarnaev was originally sentenced for plotting and executing a terror attack along with his brother, Tamerlan, who was shot and killed while eluding justice. The pair detonated two bombs at the finish line of the 2013 Boston Marathon, killing three and injuring more than 260. Patricia Campbell, whose 29-year-old daughter Krystle Campbell bled to death after one of the Tsarnaevs' bombs shredded her lower torso, told the Boston Globe that she could not understand the appellate court's ruling.
"It's just terrible that he’s allowed to live his life," Campbell said. "It's unfair. He didn't wake up one morning and decide to do what he did. He planned it out. He did a vicious, ugly thing."
Biden seemed to agree with Campbell's sentiment in the past. During a 2013 memorial service for Tsarnaev victim officer Sean Collier, Biden called the brothers "twisted, perverted, cowardly, knock-off jihadis," and told police officers present that they were "all the things, these perverted jihadis, self-made or organized, all the things they fear."
Like his public respect for police officers, Biden's support for the death penalty has waned during the 2020 campaign. Executions were a key part of the 1994 Violent Crime Control and Law Enforcement Act, which Biden authored and described as doing "everything but hang[ing] people for jaywalking." Barack Obama nominally supported capital punishment, as did 2016 nominee Hillary Clinton—a view consistently in line with the majority of Americans.
But yielding on capital punishment has been part of Biden's leftward shift to meet the Democratic Party's activist base. Biden's campaign platform officially calls for ending the federal death penalty and giving federal capital offenders like Tsarnaev life without parole. Death penalty abolition also appears in draft text of the Democratic Party's 2020 platform, mirroring the language used in the report from Biden's "unity taskforce" with Sen. Bernie Sanders (I., Vt.).
Even if death penalty abolition does not make it onto the legislative docket, a Biden administration could see the de facto suspension of the death penalty. That was the policy under Obama, who called the death penalty "deeply troubling" and under whom no federal executions were carried out.
Trump, long a prominent advocate of capital punishment, has by contrast made restarting the death penalty a priority. The first federal executions in 17 years were carried out earlier this month.