The U.S. Supreme Court said on Monday that it will consider a federal government request to reinstate the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, reopening a case at the heart of one of the most terrifying and dramatic chapters in Boston history.
It is the latest twist in a long legal battle, and experts on both sides of the court decisions say they hope to avoid retraumatizing the victims’ families and survivors of the deadly 2013 bombing.
Three were killed and more than 260 were injured by two bombs placed by Dzhokhar Tsarnaev and his brother, Tamerlan, near the Boston Marathon finish line. What followed was a disquieting week across the region, with military vehicles taking up residency on the Boston Common, a lockdown across Greater Boston, a hunt for the Tsarnaev brothers that ended in a wee-hours shootout on the streets of Watertown, and the capture of a bloodied Dzhokhar Tsarnaev in a boat parked in a Watertown backyard.
The Supreme Court case, which will be heard in the fall, will review a 2020 decision by the First Circuit U.S. Court of Appeals to vacate the death penalty for Tsarnaev who is currently serving multiple life sentences in federal prison for his role in the bombing. The appeals court found that the judge at Tsarnaev’s original trial did not take the proper steps to ensure the jury was not biased against him, among other things.
“I’m pleased that they are going to be reviewing it,” former U.S. Attorney Carmen Ortiz, who oversaw Tsarnaev’s original prosecution in 2015, told GBH News.
Ortiz noted that under the 2020 ruling, a new penalty-phase trial would have to be held to determine whether Tsarnaev should be put to death. That’s something she says runs the risk of reopening old wounds.
“In many ways it is retraumatizing,” said Ortiz. “It's very painful and very difficult to relive incidents of years ago."
But Harvard Law School Professor and retired U.S. District Judge Nancy Gertner argues the continued pursuit of the death penalty by the federal government in this case runs the same risk.
“Given that Mr. Tsarnaev will never leave prison, the government should consider whether continuing to pursue a death sentence for him is unnecessarily traumatizing for the victims’ families and the City of Boston,” said Gertner in a statement. “The First Circuit carefully reviewed Mr. Tsarnaev’s case and concluded that the trial judge made errors that undermined the fairness of his death sentence.”
It is unclear whether the Biden administration could reverse course and ask the Supreme Court to drop the matter, as the appeal was first brought by the U.S. Justice Department under President Trump, which carried out the executions of 13 federal inmates during his final six months in office.
"I think this is going to be the first of many decisions that both U.S. Attorney General Merrick Garland and ultimately President Biden are going to have to make on any number of matters before the court," said Massachusetts Attorney General Maura Healey, speaking on GBH's Boston Public Radio Monday. Her office has no role in the case as it is a federal crime. "We’ll have to see what the Biden administration, through the United States Department of Justice, does in terms of briefing and handling this matter," she said.
According to the Associated Press, the Justice Department has not notified the court of any change in its position in Tsarnaev’s case.
Biden has pledged to seek an end to the death penalty. He also served as Vice President for the Obama administration, which sought the death penalty against Tsarnaev in the first place.
