The Justice Department will ask the United States Supreme Court on Wednesday to reinstate the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, despite the fact that the agency has suspended all federal executions and President Biden has vowed to abolish capital punishment.
Tsarnaev’s conviction for the 2013 attack that killed three people and injured more than 200 was upheld by a federal appeals court last year, but the jury-recommended execution was overturned on the grounds that procedural errors during the sentencing phase violated his right to a fair and impartial hearing. The Biden administration refers to the case as “one of the most important terrorism prosecutions in our nation’s history,” and plans to argue before the Supreme Court that any irregularities during the process would not have led the jury to a different sentence, and that the execution must proceed.
“It’s one thing to say you’re against capital punishment; it’s quite another for the US Attorney’s Office to tell the good people of Boston that the death penalty will no longer be used against the Boston Marathon bomber. And, so they didn’t,” said Jeffrey Wall, the former Trump administration acting solicitor general who first led the appeal to reinstate Tsarnaev’s sentence, on why the new administration is continuing to seek death.
A Biden administration official pointed to a June statement by White House press secretary Jen Psaki stated that Biden has “deep concerns” about capital punishment and believes that “the Department should return to its prior practice of not carrying out executions.”
Tsarnaev’s attorneys claim their client is entitled to a new sentencing hearing after an appeals court determined that the trial judge improperly denied admission of key mitigating evidence and inadequately screened prospective jurors for bias.
The defense argued that Tamerlan Tsarnaev’s alleged involvement in a triple homicide in Waltham, Massachusetts, in 2011 is critical evidence that he, not Dzhokhar, was the mastermind of the marathon attack and had previously exerted influence over younger accomplices.
“On the tenth anniversary of the September 11th attacks in 2011, Tamerlan robbed and murdered a close friend and two others as an act of jihad,” Tsarnaev’s attorneys write in their brief to the Supreme Court. “The bombings were the culmination of Tamerlan’s months-long effort to draw Dzhokhar — a teenager well-liked by teachers and peers, with no history of violence — into extremist violence.”
Tamerlan Tsarnaev was killed shortly after the attack when he was run over by his brother while fleeing police after a gunfight.
“If you accept the Eighth Amendment principle that someone has a pretty good right to bring in almost anything that’s mitigating… if you don’t allow the defendant to bring in this evidence, you’ve basically deprived him of the only defense against the death penalty he was offering,” said Irving Gornstein, director of the Supreme Court Institute at Georgetown University Law Center. “That, I believe, will give [the justices] pause. Enough of this pause? Most likely not. However, some people are hesitant.”
The defense also claimed that the trial judge failed to uncover evidence of bias among potential jurors by failing to ask specific questions about pretrial media exposure, such as what they had read, heard, or seen about Tsarnaev or the Boston Marathon bombing.
Solicitor General Elizabeth Prelogar contends that neither error, even if uncontested, would have swayed a jury against the death penalty.
The administration’s pursuit of Tsarnaev’s death penalty contradicts President Biden’s 2020 campaign promise to “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”
Although no legislation has been introduced, Attorney General Merrick Garland ordered a temporary halt to further federal inmate executions in July, citing a number of defendants who were later exonerated as well as statistics indicating a possible discriminatory impact on minorities. The Supreme Court could reinstate Tsarnaev’s death sentence, or it could hand Tsarnaev a chance at a new sentencing hearing, clarifying rules for jury selection and mitigating evidence in death-penalty cases.