The Supreme Court announced Monday that it will consider the government’s bid to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev.
Monday’s order poses an early test for President Joe Biden, who opposes capital punishment. Though Biden supported capital punishment for decades, his reemergence as a death penalty abolitionist in the 2020 campaign reflects the combined power of the left-wing activist base and an elite donor class staunchly opposed to executions. Tsarnaev’s case puts Biden’s Justice Department in the position of defending the most high-profile execution in years.
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Tsarnaev was sentenced to death in 2015, but the First U.S. Circuit Court of Appeals vacated that sentence in July 2020. Former attorney general William Barr vowed to do “whatever’s necessary” to execute Tsarnaev, but it’s not clear how the Biden administration will proceed.
Tsarnaev was tried for his part in the deadly 2013 attack in a federal court in Boston. The defense did not dispute that Tsarnaev helped carry out the attacks but argued he was forced to do so under the influence of his older brother, Tamerlan. The jury sentenced Tsarnaev to death in 2015 after finding him guilty of all 30 counts of the indictment.
On appeal, a three-judge panel of the First Circuit keyed on two issues. One was the partiality of the jury pool. The attack, the ensuing manhunt, and Tsarnaev’s arrest led the news in Boston for weeks, making it difficult to find jurors with an open mind. The appeals court said the trial judge should have vetted jurors more carefully.
The second issue involved a separate 2011 triple-homicide in which Tamerlan was a lead suspect. After the bombing, an accomplice told authorities that Tamerlan committed the murders and induced him to assist. That dovetails with Tsarnaev’s chief defense, that Tamerlan was an aggressive and domineering personality who exerted a powerful influence on the people around him. The trial court refused to admit any evidence from the 2011 murders. The First Circuit said that was a mistake.
The First Circuit’s decision doesn’t disturb Tsarnaev’s underlying convictions.
“Dzhokhar 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,” Judge O. Rogeriee Thompson of the appeals court wrote.
The Supreme Court rarely reviews case-specific mistakes, but the Trump Justice Department said the prosecution of the marathon bomber was a special circumstance.
“The Boston Marathon bombing was one of the most devastating acts of terrorism in United States history,” the government’s petition reads. “The enormous efforts devoted to [Tsarnaev’s] capital trial by the jury, the district court, the victims, and the government reflect the seriousness of [Tsarnaev’s] crimes. In view of the significance of this case to the nation, appellate review should include the nation’s highest court.”
Biden’s Justice Department has repudiated its predecessor and flipped positions in several high-profile cases, but hasn’t said anything about Tsarnaev. The Trump administration authored all legal papers the government submitted to the Supreme Court in Tsarnaev’s case, and all filings were submitted to the justices by Dec. 23. That the Court delayed action for months is an indication that the justices were waiting to see what the new administration would do.
Republicans wasted no time in pressing the Justice Department to see the case through.
“The Biden administration should stand strong in favor of capital punishment for this terrorist, and justice should be done,” Sen. Tom Cotton (R., Ark.) said Monday.
Even if the Supreme Court reinstates Tsarnaev’s death sentence, nothing requires the Biden administration to carry it out. Capital punishment at the federal level was effectively on hiatus from 2003 to 2019, when the Trump administration announced it would resume executions. The Federal Bureau of Prisons executed 13 people before Trump left office.
Attorney General Merrick Garland declined to comment on the case during his confirmation hearings.
Tsarnaev is currently incarcerated at the federal supermax facility in Florence, Colo. In a separate legal challenge, he argues prison officials are violating his constitutional rights by withholding access to his canteen account and restricting his communications with the outside world.
The High Court is likely to hear the case in November or December of this year, with a decision to follow by summer 2022. The case is No. 20-443 United States v. Tsarnaev.
Kevin Daley covers the Supreme Court for the Washington Free Beacon. He has covered the Supreme Court since 2016. His email is email@example.com.