What Does the Supreme Court’s Impending Decision on the Boston Marathon Bomber Mean for the Future of Federal Executions?

A 2015 courtroom sketch of Tsarnaev standing before a US District Court Judge. Source: Forbes

On April 5th, 2013, Dzhokar Tsarnaev and his older brother Tamerlan planted and detonated bombs along the finish line of the Boston marathon. 8 years and 6 months later, the U.S. Supreme Court heard oral arguments concerning the sentencing of Tsarnaev. Specifically, they heard arguments over whether his death sentence was warranted or if his constitutional rights were in any way violated during the sentencing process. Make note that the court was not deciding on the guilt of Tsarnaev, but rather if he was justly sentenced to death in his conviction of 30 charges. 

On that fateful April day in 2013, over 200 hundred were injured and 3 people lost their lives due to the attacks perpetrated by the Tsarnaev brothers. A manhunt for the two took place as the FBI and law enforcement pieced together the events of the day. Eventually, Tmaerlan Tsarnaev would be killed in a shootout, but on April 19th Dzhokar would be successfully detained, arrested, and charged for his involvement in the bombings. The charges include use of a weapon of mass destruction which potentially carried a sentence of death. Nearly 2 years later, on April 8th 2015, Tsarnaev was found guilty on all charges and sentenced to death a month later. 

However, Tsarnaev’s story does not end with his sentencing. In 2018, his death sentence was appealed, and in July 2020, the First Circuit Court of Appeals, located in Boston, ordered a new sentencing proceeding for the convicted Tsarnaev. The court opined that the judge who heard Tsarnaev’s case did not fully protect his due process rights. Due to widespread publicity, jury selection for cases involving terrorism can be quite difficult. As in this case, publicity of the bombings may have tainted the virtue of impartiality in jurors. In fact, Tsarnaev’s case was heard by jurors from Boston, in a courthouse in Boston, in close proximity to the location of the actual attacks. The appeals court found that some jurors in this case were not thoroughly vetted and thus Tsarnaev may have received an unfair sentencing. 

Specifically, two jurors were highlighted by Tsarnaev’s lawyers for having possible prejudices. One juror failed to disclose that they posted that he was a “piece of garbage” on Twitter while another failed to disclose discussing the case with a friend on Facebook where the friend urged him to “play the part, sit on the jury and send Tsarnaev to prison where he would be taken care of.” So, the argument that jurors were prejudiced is certainly understandable and thus explains why the appeals court ruled the way it did. However, his life has not been conclusively spared — as the Biden Justice Department appealed to the Supreme Court for reinstatement of his death sentence. 

On October 13th, 2021, the Supreme Court heard oral arguments concerning the sentence. The arguments centered around the jury in the original case but also considered the influence of the elder Tsarnaev on then 19 year old Dzhokar. Regardless, a decision on the case is expected in June 2022. For now, the sentence of Tsarnaev rests in the hands of the justices. 

Even if the court reinstates the death sentence, the prospects that Tsarnaev will actually be executed is…puzzling. For one, there is a paradox between the publicly stated positions of the Biden administration and the actions that have taken place concerning this case. Biden campaigned on eliminating the death penalty yet his Justice Department sought its reinstatement in the Tsarnaev case. Furthermore, his administration ordered a pause on federal executions earlier this year. Still, this is a contrast from the Trump administration where federal executions resumed after nearly a 20-year hiatus. 

Currently, 23 states have ceased the use of the death penalty, Virginia being the most recent to abolish the practice in 2021. A majority of Americans support the use of capital punishment, but a partisan rift exists. Republicans are more likely to support its use while Democrats are more likely to oppose it. Regardless, public opinion on the death penalty has only marginally changed in recent years with opposition making slight gains. 

Due to events surrounding the Tsarnaev case, it is difficult to predict the future of the death penalty in federal cases. If the Supreme Court reinstates Tsarnaev’s death sentence, the Biden administration can choose not to execute him. However, a future administration could just as easily choose to follow through on the execution. In jurisdictions where it is not eliminated, individual preferences for the death penalty may determine the fates of those convicted of capital punishments. All in all, the aftermath of this decision will signal the current administration’s views upon the death penalty but cannot exactly be extrapolated to future federal administrations.