Boston Bomber Death Sentence Push Tests Biden’s Abolition Pledge

The Justice Department on Wednesday will press the Supreme Court to reinstate Boston Marathon bomber Dzhokhar Tsarnaev’s death sentences, despite President Joe Biden’s claimed anti-death penalty stance.

Far from opposing capital punishment, the federal government is fighting for the right to execute the man it called in court papers “the most notorious domestic terrorist in recent American history.”

Heading into the argument, there’s reason to think the government will win that right.

“They likely wouldn’t have taken the case but for their desire to re-institute the death sentences,” Boston College law professor Robert Bloom said of the Supreme Court’s decision to grant review of the government’s appeal.

Pretrial Publicity, Mitigating Evidence

There are two legal issues in the appeal stemming from the 2013 bombing that killed Krystle Campbell, 29; Lingzi Lu, 23; and Martin Richard, 8, and injured hundreds more. One is about pretrial publicity. The other involves mitigating evidence at sentencing.

The Boston-based U.S. Court of Appeals for the First Circuit said last year that the Boston judge who presided over the trial, George O’Toole, didn’t sufficiently screen jurors’ media exposure to the widely-covered terror attack.

The First Circuit also said O’Toole should have let Tsarnaev present evidence of previous crimes committed by his older brother, Tamerlan, who did the bombing with him and died during a shootout with police. Tsarnaev, who doesn’t contest his guilt, wanted that evidence to bolster his claim that he was acting under his older brother’s influence, hoping that would help convince the jury to sentence him to life instead of death. Tsarnaev, now 28, was 19 at the time of the bombing. His brother was 26.

“In 2011, on the tenth anniversary of the September 11 attacks, Tamerlan robbed and murdered a close friend and two others as an act of jihad,” Tsarnaev said in his high-court brief, filed by Ginger Anders of Munger, Tolles & Olson in Washington. She’ll argue his case to the justices. “For Dzhokhar—a teenager well-liked by teachers and peers, with no history of violence—the bombings were the culmination of Tamerlan’s months-long effort to draw him into extremist violence.”

The First Circuit’s reversals on the jury and evidence issues were both unwarranted intrusions on the trial judge’s discretion, the Justice Department said in its brief. Deputy U.S. Solicitor General Eric Feigin will argue for the government.

Tsarnaev received life sentences as well, which the First Circuit affirmed. The appeals court emphasized he won’t be going free, no matter the outcome. The only question at this point is whether he dies by execution or during his life term. He’s being held at a Colorado supermax prison.

“This is the kind of case where a grant probably suggests some skepticism about what the lower court did,” Goodwin’s William Jay, who filed a brief supporting the government for the National Fraternal Order of Police, said on a recent episode of Bloomberg Law’s “Cases and Controversies” podcast.

Execution Moratorium

The case is also being litigated against the backdrop of an execution moratorium imposed by Attorney General Merrick Garland this past summer.

If the justices don’t reinstate Tsarnaev’s death sentences, then DOJ could have to decide whether to pursue another sentencing trial. That would entail making victims relive the attack while further chipping away at Biden’s abolitionist campaign pledge. Capital trials are split in two phases, with separate sentencing trials conducted if defendants are convicted during the guilt phase.

If the government wins at the high court, then Tsarnaev could press further appeals lasting beyond Biden’s tenure, potentially putting the decision whether to execute him in a future administration’s hands.

Despite Biden’s pledge to eliminate the death penalty, he has so far declined to commute federal death-row sentences to life. Following the unprecedented execution of 13 people during the final six months of Donald Trump’s term, there are 45 people on federal death row, including Tsarnaev, according to the Death Penalty Information Center.

A ruling is expected by July.

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