Selective presidential compassion for a presidential son
Candidate Biden vowed to end execution, but failing to do so, he’s also denying clemency to a 19-year-old alleged killer Trump will surely kill
In ancient times, when a new king, queen or emperor assumed the throne, he or she, to show benevolence (and perhaps earn public favor), would free prisoners from captivity. This ancient tradition is reflected in the US by the pardons typically granted by outgoing presidents, who have unlimited Constitutional authority to cancel convictions with a pardon, or to leave the conviction standing while commuting the sentence. That authority, however, has generally been used sparingly.
In President Joe Biden’s case, he “went big” (at least in historical US terms), by releasing 1500 federal prisoners who had been released to home confinement during the Covid pandemic. But when it came to calls for him to make good on his campaign promise in 2020 to “do away with the death penalty,” and to pardon or commute the sentences of all 40 people waiting on federal death rows for their appeals to run out, he did what has been his career MO: to offer half a loaf to reform advocates and then to double down on appearing “tough on crime.”
With the incoming President, Donald Trump, who takes office Jan. 20, and is promising to end Biden’s moratorium on executions, beginning a wave of them, Biden commuted the death sentences of 37 of those convicted killers, leaving three to still facing execution. Two of those three, Robert Bowers who murdered 11 Jewish members of the Pittsburgh Tree of Life Synagogue, and Dylan Roof, who gunned down nine black parishioners at a church in South Carolina, he explained, were “mass killers” whom he said had killed “motivated by hate.” The third, Djhokhar Tsarnaev, a Boston-area teenager, he labeled a “terrorist,” for his part in the 2013 Boston Marathon bombing that killed three people and injured over 200.
Criminal justice and its extreme penalties place the US as being still being in the Middle Ages. In many — perhaps a majority — of the nations around the world, prison is viewed as a place where criminals are supposed to be rehabilitated and eventually returned to society. In the US however, a felony conviction is for life. That is, if someone is convicted of a serious crime classed as a felony, even if the sentence is relatively short, that felony record, like the giant A required to be worn by adulteresses in Puritan colonial Massachusetts, follows them out the prison walls, and makes it almost impossible for the ex-prisoner after serving her or his time to find a steady employment or even to go to school. It is, in other words, a life-long punishment. Rehabilitation is barely spoken of. The goal of prison in the US is vengeance. It is the vengeance of the state or the society and of the victims of a crime. This is even more true in the case of capital cases where the punishment is death or life in prison without the possibility of parole — both dire punishments that don’t exist, for example, in any of the nations of the European Union.
Part the criminal Effective Death Penalty Act, a “’reform” package pushed through Congress in 1996 by President Clinton and then-Senate Judiciary Committee Chair Biden, made appealing a death penalty through the federal court system, including appeals of state court death penalty rulings, much harder, with the goal being not ensuring justice and avoiding wrongful executions of innocent persons, but rather ensuring that death penalty sentences will be carried out expeditially, and not allowed to linger through lengthy appeals. Under that act, federal appeals courts as well as a majority of the US Supreme Court have held that even evidence of innocence can be ignored if the prisoner in question can be considered to have failed to raise it earlier. In other words, a lack of due diligence by a defense attorney, or by the doomed prisoner him or herself, can mean an execution can go ahead even it the victim is likely to be innocent.
I investigated the case of one of those three on death row who didn’t get his sentences commuted: Dzhokhar Tsarnaev. Age 19 at the time, he was the younger of two brothers alleged to have caused the bombings of the 2013 Boston Marathon. His brother Tamerlan, 26, was fatally shot by Boston police during a nighttime manhunt. Dzhokhar somehow survived a fusillade of over 100 bullets fired at him by pursuing as he lay hiding and unarmed inside a fiberglass -hulled boat in the backyard of a home in suburban Boston, though he was gravely wounded including by one bullet through his neck that pierced his larynx.
In a series of articles published in ThisCantBeeppening!, WhoWhatWhy, and Counterpunch, I laid out the myriad troubling questions about Dzhokhar’s case, including evidence that Djhokhar’s elder brother Tamerlan had been contacted by the FBI well before the Marathon and had evidently been pressured to become an FBI source in the Boston Chechen community and noted that despite minimal employment was wearing expensive clothes and driving a Mercedes. I also demonstrated myself that the two brothers could not have been carrying heavy pressure cookers packed with black powder explosive and steel nails in their backpacks as claimed by the FBI and the US Justice Dept. at Dzhokhar’s 2015 trial.. For those who are interested, here are the links;
Official Story has Odd Wrinkles
Darkj Questions about a deadly FBI interrogation in Orlando
Two Lawmen, Two Stories of a Boston Marathon Witness Killing
Surprise Surprise; Government Exonerated FBI’s Lax Investigation of Suspected Boston Bomber
Is the FBI Now in fhe Execution Business?
The above links, all the result of my own investigation into this case, are a lot to read, I’ll admit, but anyone who takes the time to go through them will likely agree with me that the supposed open-and-shut case that Dzhokhar Tsarnaev, who was only 19 at the time of the Boston Marathon bombing, and was clearly under the sway of his much idolizeded 26-year-old brother Tamerlan, as a vicious terrorist meriting the death penalty (which was President Biden’s excuse for not including him in his sweeping granting of clemency given to 37 other federal death row prisoners this past week), has not been proved “beyond a reasonable doubt.”
The federal judge who oversaw the case against Dzhokhar didn’t even allow the Massachusetts ACLU to submit a “friend of the court” brief in the case. — a routine filing in Constitutionally significant federal cases. Also, as mentioned, President Obama (the alleged constitutional lawyer), announced before the Dzhokhar had even been caught, that as a terrorist he would not be read his Miranda rights and would be questioned without an attorney. Having the Commander-in—Chief call him a “terrorist,” meant in a post 9-11 world that he could be beaten get him to talk.
Reading the transcript of his initial questioning, when the only word he could manage to utter was apparently a hard-to-decipher “No.” Because of a combination of the drugs he’d been administered in the hospital for an operation and because a police bullet had gone through his larynx, it is apparent even from that print transcript that Dzhokhar was barely lucid during the lengthy FBI grilling. Given that and the fact that no attorney was present during his hospital grilling, FBI and Justice Department claims that he had ‘confessed to the bombings” is simply laughable.
Djhokhar’s whole trial was in fact a sham, and his conviction and death sentence on federal charges (Massachusetts doesn’t execute people so had he not been hit with a terrorism charge and been tried in state court, there would not have been a death penalty option on the table), was a foregone conclusion. His death sentence was was overturned by a Boston federal Appeals Court in 2020 on Constitutional grounds, but that ruling was overturned and the death penalty reinstated in 2022 by the US Supreme Court in a 6-3 decision.
Many Americans, often the ones who are quickest to claim that federal government cannot do anything right or fair, are quite enthusiastic about that same government sanctioning the killing of people tried in government courts even though the consequence of those court decisions on guilt and on ordering executions, are irreversible when the decisions are wrong or involve government lies or secret motives. Capital cases meanwhile are especially flawed because, of necessity, the prosecution is allowed an unlimited number of dismissals of any potential juror who says or she oppose the death penalty. Since many studies have found that people who favor the death penalty also tend to believe prosecution witnesses, including police officers and prosecution attorneys than are those who oppose the death penalty, convictions are much more likely in such cases than in cases where the death penalty is not being sought, and where prosecution and defense get the same number of “without cause” dismissals of potential jurors.
Then too, there has in recent years been much new information about the uneven development of the youthful brain, with the emotions developing earlier and control functions, such as the ability to gauge risk, consider consequences and inhibit the emotional responses, not fully developed until a person reaches their mid-20s. This means punishments should be less serious and execution should be off the table. In more enlightened countries, execution is not allowed for criminals 18 and under in age. In Scotland, the age of maturity in terms of criminal sentencing, has been set at 25, in line with a study ordered by the Scottish parliament and with the conclusions of a number off US based neurological studies.
Biden was willing to excuse his own son Hunter for reprehensible felonious behavior which he attributed to the death of an admired elder brother and to his resulting addiction to drugs and alcohol. As a result, the outgoing president issued him a sweeping (and controversial) pardon of his felony conviction. But though he has had and still has an opportunity to put a halt, however temporary, to the hoary US practice of federal government-sanctioned killing before the advent of the second presidential term of Donald Trump, an enthusiastic supporter of executions, begins, Biden has not shown such compassion for young man facing not just a few years in prison for a felony he committed at the age of 19, but death by injection.
Thanks to Biden’s selective compassion in favor of his son, Dzhokhar Tsarnaev will likely be one of Trump’s first second-term executions.
DAVE LINDORFF is a founding editor of ThisCantBeHappening!, the collectively owned and run online news site not on the Substack platform. He is most recently the author of a fifth book, “Spy for No Country: The story of Ted Hall, the teenage atomic spy who may have saved the world” (Prometheus Books, 2003) and is a frequent contributor to Counterpunch.