The Supreme Court said Monday it will consider reinstating the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, presenting President Joe Biden with an early test of his opposition to capital punishment.
The justices agreed to hear an appeal filed by the Trump administration, which carried out executions of 13 federal inmates in its final six months in office, including three in the last week of President Donald Trump’s term.
The case won’t be heard until the fall, and it’s unclear how the new administration will approach Tsarnaev’s case. The initial prosecution and decision to seek a death sentence was made by the Obama administration, in which Biden served as vice president.
Biden has pledged to seek an end to the federal death penalty, but he has said nothing about how he plans to do so.
In just over two months in office, the new administration has reversed its predecessor’s position in several high court cases. But the Justice Department has not notified the court of any change in its position in Tsarnaev’s case.
Even if the court were to reinstate the death sentence, nothing would force Biden to schedule an execution date.
White House press secretary Jen Psaki did not say how Biden or his administration would approach the case at the Supreme Court. “He has grave concerns about whether capital punishment as currently implemented is consistent with the values that are fundamental to our sense of justice and fairness. He has also expressed his horror at the events of that day and Tsarnaev’s actions,” Psaki told reporters.
In late July, the federal appeals court in Boston threw out Tsarnaev’s sentence because, it said, the judge at his trial did not do enough to ensure the jury would not be biased against him.
The Justice Department had moved quickly to appeal, asking the justices to hear and decide the case by the end of the court’s current term, in early summer. Then-Attorney General William Barr said last year, “We will do whatever’s necessary.”
Tsarnaev’s lawyers acknowledged at the beginning of his trial that he and his older brother, Tamerlan Tsarnaev, set off the two bombs at the marathon finish line on April 15, 2013. But they argued that Dzhokar Tsarnaev is less culpable than his brother, who they said was the mastermind behind the attack.
Tamerlan Tsarnaev, 26, died following a gunfight with police and being run over by his brother as he fled. Police captured a bloodied and wounded Dzhokhar Tsarnaev hours later in the Boston suburb of Watertown, where he was hiding in a boat parked in a backyard.
Tsarnaev, now 27, was convicted of all 30 charges against him, including conspiracy and use of a weapon of mass destruction and the killing of a Massachusetts Institute of Technology police officer during the Tsarnaev brothers’ getaway attempt. The appeals court upheld all but a few of his convictions.
Hard cases make bad law. Sure, we would all like him dead, but our track record with the death penalty really should give us pause, even for this guy.