The Justice Department is still pressing the U.S. Supreme Court to reinstate Boston Marathon bomber Dzhokhar Tsarnaev’s death sentences, continuing its Trump-era position despite President Joe Biden’s campaign pledge to eliminate capital punishment.
The department under Biden has flipped positions in a series of other cases. In a recent one involving federal benefits for people in Puerto Rico, the department maintained the Trump-era stance opposing benefits, but Biden’s White House issued a statement ahead of the filing, saying the position “is inconsistent with my Administration’s policies and values.”
No such statement was issued ahead of the filing in Tsarnaev’s case, which the department’s brief, like last year’s petition, called “one of the most important terrorism prosecutions in our Nation’s history.”
The government appealed to the high court during Trump’s tenure, following a federal appeals court ruling that overturned Tsarnaev’s death sentences for the 2013 terror attack.
The U.S. Court of Appeals for the First Circuit cited the trial court’s lack of proper vetting of jurors’ exposure to pretrial publicity.
The First Circuit left Tsarnaev’s life sentences intact for his role in the bombing that, with his older brother, Tamerlan, killed three people and injured hundreds more. The brothers also killed a Massachusetts Institute of Technology campus police officer while trying to flee the state. Tamerlan died after a violent confrontation with police.
Tsarnaev was tried and sentenced in 2015 when Biden was vice president under Barack Obama. Biden supported capital punishment as a senator.
After defeating Trump in the 2020 election, Biden came into office while the Justice Department’s petition was pending at the high court, forcing an early confrontation with his claimed anti-capital punishment stance. Court watchers speculated whether the department would withdraw the petition or otherwise modify its position.
After Attorney General Merrick Garland was confirmed in March, with still no change in position, the Supreme Court granted the petition, setting the case up for argument next term, which begins in October. The appeal joins a host of other contentious disputes including guns and abortion.
Garland, previously a federal appeals court judge in Washington, oversaw the government’s investigation and prosecution of the 1995 Oklahoma City bombing while with the Justice Department. Timothy McVeigh was executed for the bombing in 2001. During his attorney general confirmation hearing, Garland expressed skepticism over the death penalty, though he’s yet to take public action against it.
Biden is also unusually late to nominate a solicitor general—DOJ’s top Supreme Court lawyer—though the acting solicitor general, Elizabeth Prelogar, was put in the position by Biden, and the department has flipped in several other cases during her tenure.
There are 46 people on federal death row, according the Death Penalty Information Center. The Trump administration carried out an unprecedented string of federal executions, totaling 13 from July 2020 to January 2021. Anti-capital punishment advocates have called on Biden to commute the remaining federal death row prisoners’ terms.
In addition to fighting the First Circuit’s pretrial publicity ruling, DOJ also says the appeals court was wrong to fault the trial judge for excluding evidence that Tamerlan committed other crimes unrelated to the bombing.
“The jury that watched a video of respondent place and detonate a shrapnel bomb just behind a group of children would not have changed its sentencing recommendation based on Tamerlan’s supposed involvement in unrelated crimes two years earlier,” DOJ said in its brief filed Monday. Tsarnaev is the respondent in the case, United States v. Tsarnaev.
“The court of appeals,” DOJ’s brief said, “lacked any sound basis for concluding otherwise and undoing the work of the jurors to whom the issue of capital punishment was properly entrusted.”
The case is United States v. Tsarnaev, U.S., No. 20-443.