U.S. Supreme Court to Review Federal Appeals Court Decision that Overturned Death Sentence in Boston Marathon Bombing

The United States Supreme Court has grant­ed a Department of Justice request filed dur­ing the admin­is­tra­tion of President Donald Trump to review a fed­er­al appeals court deci­sion that over­turned the death sen­tences imposed on Dzhokhar Tsarnaev (pic­tured) for his role in the April 2013 Boston Marathon bomb­ing that killed three peo­ple and injured more than 250 others. 

After resched­ul­ing the case for con­sid­er­a­tion six sep­a­rate times, the Court agreed on March 22, 2021 to hear the government’s appeal. The case will be sched­uled for argu­ment in the Court’s Fall 2021 court term. 

A unan­i­mous pan­el of the U.S. Court of Appeals for the First Circuit over­turned Tsarnaev’s death sen­tences on July 31, 2020, find­ing that the tri­al judge had failed to ade­quate­ly ques­tion jurors about their expo­sure to per­va­sive pre­tri­al pub­lic­i­ty con­cern­ing the case. The pan­el also held that the tri­al court had improp­er­ly barred Tsarnaev from pre­sent­ing evi­dence that his old­er broth­er, Tamerlan had com­mit­ted a pri­or triple mur­der, say­ing the rul­ing had uncon­sti­tu­tion­al­ly pre­vent­ed Tsarnaev from devel­op­ing mit­i­gat­ing evi­dence that he was less cul­pa­ble than Tamerlan and had act­ed under his broth­er’s domineering influence. 

In August 2020, then-Attorney General William Barr vowed to ​“do whatever’s nec­es­sary” to appeal the deci­sion and ​“con­tin­ue to pur­sue the death penal­ty” against Tsarnaev. The Department of Justice on October 6 filed a peti­tion for writ of cer­tio­rari seek­ing the Supreme Court’s inter­ven­tion in the case. While act­ing Massachusetts U.S. Attorney Nathaniel R. Mendell said ​“we are pleased that the U.S. Supreme Court has agreed to hear the Tsarnaev mat­ter,” DOJ offi­cials in Washington declined to com­ment on the ruling.

The Tsarnaev case presents a test of the Biden administration’s cam­paign promise to work to end the death penal­ty. During his con­fir­ma­tion hear­ings, Attorney General Merrick Garland said deci­sions to seek the death penal­ty in cas­es such as the Oklahoma City bomb­ing or Charleston church shoot­ing would be depen­dent upon what pol­i­cy President Biden adopt­ed on cap­i­tal pun­ish­ment. “[I]f we devel­op a pol­i­cy of a mora­to­ri­um, then it would apply across the board,” he said. ​“There’s no point in hav­ing a pol­i­cy if you make indi­vid­ual dis­cre­tionary deci­sions.” Asked about the Tsarnaev case, White House Press Secretary Jen Psaki was non­com­mit­tal, say­ing President Biden ​“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.”

In her opin­ion for the cir­cuit pan­el, Judge O. Rogeriee Thompson wrote that “[a] core promise of our crim­i­nal jus­tice sys­tem is that even the very worst among us deserves to be fair­ly tried and law­ful­ly pun­ished. Despite a dili­gent effort, the judge here did not meet th[at] stan­dard.” The tri­al court had relied on jurors’ ​“self-dec­la­ra­tions of impar­tial­i­ty,” Thompson wrote, but some jurors admit­ted before tri­al that they already believed Tsarnaev was guilty. The jury foreper­son with­held dozens of social media posts relat­ed to the bomb­ing, includ­ing one that called Tsarnaev ​“a piece of garbage.”

Harvard Law School Professor Carol S. Steiker, co-author of Courting Death: The Supreme Court and Capital Punishment, said the Biden admin­is­tra­tion had the author­i­ty to con­tin­ue press­ing the appeal or to con­cede that the First Circuit’s rul­ing was cor­rect. How the Supreme Court ulti­mate­ly decides the case, Steiker said, ​“will indi­cate how much weight it is will­ing to give to a well-rea­soned deci­sion of a low­er fed­er­al court in the gen­er­al areas of pre­tri­al pub­lic­i­ty and intro­duc­tion of mit­i­gat­ing evi­dence in cap­i­tal cas­es, and more broad­ly, how much the Court will police the fair­ness of the fed­er­al cap­i­tal trial process.”

Victims of the bomb­ing have been divid­ed in their reac­tion to Tsarnaev’s death sen­tence. Survivor Marc Fucarile, who lost a leg in the bomb­ing, told The Boston Globe that the sen­tence should have been ​“set in stone.” By con­trast, sur­vivor Mikey Borgard said, ​“I was relieved by the First Circuit’s deci­sion because I do not want some­one to be killed in my name. I do not believe the vic­tims in this case were ade­quate­ly con­sult­ed before the gov­ern­ment decid­ed to seek cert from the Supreme Court. It’s hard for me to under­stand why the Supreme Court grant­ed review today, or what good could come out of its even­tu­al deci­sion in this case.” He added that he would sup­port the Biden admin­is­tra­tion drop­ping the death penal­ty, not­ing that ​“Mr. Tsarnaev will spend the rest of his life in prison no matter what.” 

Bill and Denise Richard, the par­ents of 8‑year-old Martin Richard, who was killed in the bomb­ing, have pub­licly opposed the death penal­ty for Tsarnaev. ​“We know that the gov­ern­ment has its rea­sons for seek­ing the death penal­ty,” they wrote in 2015, ​“but the con­tin­ued pur­suit of that pun­ish­ment could bring years of appeals and pro­long reliv­ing the most painful day of our lives. We hope our two remain­ing chil­dren do not have to grow up with the lin­ger­ing, painful reminder of what the defen­dant took from them, which years of appeals would undoubtedly bring.”