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Boston Marathon Bomber Appeal Is Early Biden Death-Penalty Test

Jan. 15, 2021, 9:46 AM

President-elect Joe Biden says he’s against the death penalty now. A case involving the surviving Boston Marathon bomber waiting for him on Day One will test if he means it.

The Justice Department under President Donald Trump is petitioning the Supreme Court to reinstate the death sentences of Dzhokhar Tsarnaev, who won an appeals court ruling last year. The high court will next consider whether to grant review of the government’s appeal in private conference on Friday, after not acting on the petition when it was first up for consideration last week.

The Supreme Court could announce as soon as Friday that it’s granting review; it could also deny to take it up in an orders list on Tuesday, or again take no action.

Whatever the justices do, Biden’s administration will be confronted as soon as he takes office Jan. 20 with how to handle the case against one of the men responsible for the 2013 deadly bombing. Tsarnaev’s 2015 capital prosecution occurred during Biden’s vice presidential tenure, and the incoming Democratic chief executive supported capital punishment as a senator. He pledged to end federal executions during his White House campaign.

“Tsarnaev is the perfect case to test whether Mr. Biden really means that he opposes the death penalty in all cases,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a crime-victims’ group. “If he really means all, then he should take that action in the case that cries out for the death penalty the most, and this is it.”

Biden’s transition team didn’t respond to questions about what the administration will do in Tsarnaev’s case. His website lists “Eliminate the death penalty” as part of his criminal justice policy. It notes that, since 1973, over 160 people who were previously sentenced to death have been exonerated.

“Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example,” his site says. “These individuals should instead serve life sentences without probation or parole.”

Democrats said this week they’re introducing legislation to ban the federal death penalty.

Victim Factor

Tsarnaev’s trial judge didn’t do enough to screen potential jurors for pretrial publicity bias, the U.S. Court of Appeals for the First Circuit said July 31. The appeals court affirmed his life sentences, ensuring he’ll die in prison either way.

Nonetheless, the ruling upends “one of the most important terrorism prosecutions in our Nation’s history,” the Justice Department said in its Oct. 6 petition. The two shrapnel bombs set off near the finish line of the world-famous race killed three people—Krystle Campbell, 29, Lingzi Lu, 23, and Martin Richard, 8—and caused life-altering injuries to many others.

Left undisturbed, the appeals court ruling means “the victims will have to once again take the stand to describe the horrors that respondent inflicted on them,” the petition said.

“The first thought in my mind when I heard about the First Circuit ruling was how difficult this is going to be for the victims’ families and survivors of Tsarnaev’s crimes,” said Carmen Ortiz, who was U.S. attorney in Massachusetts overseeing the prosecution.

Under Biden, however, it’s unlikely those victims will be back on the stand either way.

Daniel Medwed, criminal law professor at Northeastern University School of Law in Boston, who supported Tsarnaev’s appeal in an amicus brief at the First Circuit, said he thinks it’s unlikely the Supreme Court will grant review, and that it’s also unlikely Biden would seek another death penalty trial if the First Circuit’s decision stands.

Despite the serious facts of the case, the legal issues presented aren’t pressing enough for the court to take up, Medwed said. If the court grants review, “it’s quite possibly a sign that the conservative members of the court would want to reinstate the death sentences,” he said.

Societal Statement

Biden has yet to nominate a solicitor general—the Justice Department’s top lawyer at the Supreme Court—and his attorney general nominee, D.C. Circuit Judge Merrick Garland, could be an important player in the decision of what to do in this case and others.

Garland, whom Senate Republicans denied a hearing when Barack Obama nominated him to the high court, potentially adds another wrinkle to the mix, Medwed observed. He noted that Garland prosecuted Oklahoma City bomber Timothy McVeigh, who was executed in 2001.

“The extent to which he might be in favor of the death penalty in cases of domestic terrorism would be a variable,” Medwed said.

However the new administration handles the case, it could signal its death penalty approach going forward.

“While cases such as the tragic loss of life and devastating injuries that resulted from the Boston Marathon bombing are ones that test anyone’s resolve, invoking the death penalty even in the most heinous of crimes says more about us as a society than it does about the individual the current administration is advocating should be put to death,” said former federal prosecutor Miriam Krinsky, founder and executive director of Fair and Just Prosecution, a group that advocates for reforms.

Fordham law school professor Deborah Denno, whose scholarship has been cited in Supreme Court death penalty cases, said she thinks that Biden’s Justice Department will reverse course and withdraw the petition.

The justices have frowned upon changes in government positions, but it’s not unusual when a new administration comes in.

“I think Biden will fulfill his promise and that Lisa Montgomery’s execution will cement his pledge all the more,” Denno said, referring to the Trump administration’s lethal injection this week of a woman who argued she was incompetent to be executed.

Montgomery murdered a pregnant woman and cut the baby from her womb. It’s one of three federal executions scheduled for this week before Biden takes over, the last in a spate of federal executions unseen in modern times—13 since July if all go forward.

Ortiz, now a partner at Anderson & Kreiger, said the new administration should let the appeals process play out.

“Some people would welcome the government withdrawing its petition, especially advocates against the death penalty,” she said. “But there will be many people who are disappointed, and who feel that justice was served when everyone had their voices heard in court and a jury recommended the death penalty and the judge imposed it.”

The case is United States v. Tsarnaev, U.S., No. 20-443.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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