Justice Department to Argue for Death Penalty in Boston Marathon Case

10.11.21

The Supreme Court will hear oral argument about whether to reinstate the death penalty for Dzhokhar Tsarnaev on Wednesday—two days after the Boston Marathon is held for the first time since 2019.

Mr. Tsarnaev was convicted and sentenced to death for participating with his older brother, Tamerlan, in a bombing that killed three people at the Boston Marathon in April 2013.

On July 31, 2020, a unanimous panel of the U.S. Court of Appeals for the First Circuit overturned his death sentences because the trial judge did not adequately question potential jurors about their exposure to widespread and graphic media coverage about the case.

Reports and images of the crime “flashed across the TV, computer, and smartphone screens of a terrified public — around the clock, often in real time,” the court wrote. “One could not turn on the radio either without hearing something about these stunningly sad events.”

But when Mr. Tsarnaev stood trial about two years later “in a courthouse just miles from where the bombs went off,” the trial judge did not follow clear precedent requiring that he ask questions sufficient to root out jurors who had already formed an opinion about Mr. Tsarnaev’s culpability based on pretrial publicity.

“A core promise of our criminal justice system is that even the very worst among us deserves to be fairly tried and lawfully punished,” the court wrote. “[D]espite a diligent effort, the judge here did not meet th[at] standard.”

At trial, Dzhokhar Tsarnaev conceded that he did what the government alleged but argued he should not be sentenced to death because his older brother, Tamerlan—who died after police shot him during the manhunt that followed the bombing—planned, led, and directed the bombing and intimidated him into participating.

The trial judge improperly barred the defense from presenting evidence that Tamerlan had previously killed three people, the First Circuit held, because that evidence could have persuaded the jury not to sentence Dzhokhar to death by showing he was less culpable than Tamerlan and acted under his brother’s influence.

The federal appeals court ordered a new sentencing trial.

In October 2020, the Trump administration’s Justice Department filed a petition asking the Supreme Court to review the case, which the Court granted on March 22, 2021.

Since President Joe Biden—who campaigned on ending the death penalty—came into office, the Justice Department has notified federal courts that it is no longer seeking the death penalty in multiple cases where the death penalty had been authorized by the Trump administration. Many observers expected the department to do the same in this case.

But in a brief to the Supreme Court in June 2021, the Justice Department instead asked the Court to reverse the appeals court and reinstate the death penalty.

Many have questioned Attorney General Merrick Garland’s July 2021 announcement that no federal executions will be scheduled while the department reviews the federal execution protocol and manner of execution regulations in light of its appeal in this case.