The US Supreme Court appeared on Wednesday to support reinstatement of the death penalty for 2013 Boston Marathon bomber Dzhokhar Tsarnaev, but one justice questioned how the case jibed with the Biden administration’s opposition to federal executions.
Tsarnaev’s conviction six years ago in the deadly bombing, carried out with his older brother Tamerlan who was killed while fleeing, earned him sentences of both life imprisonment and capital punishment.
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But his lawyers won an appeal of the death sentence on grounds that jurors had not sufficiently heard arguments about how Tsarnaev was deeply under the brother’s influence in committing the crime, and that the jury had been swayed by dramatic media reports in recommending execution.
The Justice Department under former president Donald Trump rejected those arguments and appealed to the high court to reinstate execution in the high-profile case.
But the Supreme Court only heard the arguments on Wednesday, three months after the department, revamped by President Joe Biden, declared a moratorium on federal executions. (Some individual states continue to carry them out.)
“I’m wondering what the government’s endgame is here,” Justice Amy Coney Barrett said.
“So the government has declared a moratorium on executions, but you’re here defending his death sentence,” she told attorneys arguing the case.
“If you win, presumably that means that he is relegated to living under the threat of a death sentence that the government doesn’t plan to carry out.”
Tsarnaev, 28, was 19 when he and brother Tamerlan Tsarnaev planted two home-made bombs near the finish line of the April 15, 2013 race, killing three people and injuring 264 others.
On the run, the two also killed a policeman. Tamerlan was then killed in a gunfight with police.
In 2015 Dzhokhar Tsarnaev was convicted on 30 counts and given the death penalty as well as sentences of life in prison.
In July 2020, the appeals court left in place most of the convictions but annulled the death sentence and ordered the lower court to hold a new sentencing trial with a new jury.
Despite his July 1 moratorium on executions, Biden’s attorney general Merrick Garland allowed the Justice department’s appeal to reinstate the original sentence to go ahead in the high court.
The three liberal justices on the high court appeared to side with Tsarnaev’s attorney, that the sentence to death unfairly ignored media reporting that could have influenced the jury, and the powerful sway his older brother had on him.
The court’s conservative majority though appeared more receptive to arguments for reinstating the original sentence.
Eric Feigin, arguing for the Justice Department, said Tsarnaev knew what he was doing, placing a bomb-laden backpack by the finish line of the race “behind a group of children…. contemplating for about three minutes, taking out his phone and calling his brother, after which the first bomb goes off.”
“The jury’s nuanced verdict in this case was based on that evidence, not anything about pretrial publicity” or other issues, Feigin said.
If the death sentence is reinstated, he added, it would still be held up by other procedures while Garland’s moratorium review of executions takes its course.
After Wednesday’s arguments, the Supreme Court should make a decision by June 2022.