Updated March 4, 2022 at 1:37 PM ET
The U.S. Supreme Court has reinstated the death penalty for Dzhokhar Tsarnaev, the convicted Boston Marathon bomber. The vote, in a decision issued Friday, was 6-3 with the court's liberals issuing a relatively subdued dissent.
The attack in 2013 killed three people, including one 8-year-old boy, and left hundreds injured. After some initial confusion, Dzhokhar Tsarnaev and his brother, Tamerlan, were identified as the bombers. During the manhunt, the Tsarnaev brothers killed an MIT campus police officer who was sitting in his car. Eventually, Boston-area police cornered the brothers, but Tamerlan was killed in the ensuing shootout with police.
Although Massachusetts had abolished the death penalty, Dzhokhar Tsarnaev was convicted on 30 terrorism related charges and sentenced to death on six of them. He did not contest his guilt but appealed his death sentences, arguing that the jury's imposition of the death penalty was tainted by the trial judge's refusal to allow him to present evidence that would show that Dzhokhar Tsarnaev, 19 at the time of the bombing, was under the influence of his violent brother Tamerlan, seven years older.
The trial judge blocked the defense from presenting evidence to the jury showing that Tamerlan had, two years before the bombing, slit the throats of three men in Waltham, Mass., in an act of jihad on the anniversary of the 9/11 attack. The defense argued that this mitigating evidence may have convinced that jury to spare Tsarnaev's life, and a federal appeals court agreed.
On Friday, the Supreme Court reversed the appeals court and reinstated Dzhokhar Tsarnaev's death sentence.
Despite the decision, Tsarnaev will not be executed anytime soon. The Trump administration, in its waning days in office, ended a federal execution moratorium and executed 13 men sentenced to death on federal charges. But the Biden administration has restarted the moratorium so that the Justice Department can conduct a thorough review of the department's policies and procedures.
Brooklyn law school professor Alexis Hoag, who has represented defendants in capital cases for more than a decade, says the decision will have little effect in other cases. "It does not forge new legal ground," she said, adding that the court simply concluded that the appeals court didn't give the trial court the "discretion it was owed."
Justice Clarence Thomas wrote the decision in the Tsarnaev case. He emphasized the unreliability of the evidence linking Tamerlan to the still-unsolved Waltham murders. Capital sentencings "are not evidentiary free-for-alls," he said, and here there is not "any way to confirm or verify the relevant facts, since all the parties involved were dead," including Tamerlan and his alleged accomplice, who was later killed in a shootout with law enforcement too.
Justice Stephen Breyer wrote a dissent that was solemn in tone. He was joined by Justices Sonia Sotomayor and Elena Kagan. He argued that due to the special, irreversible nature of the death penalty, the Supreme Court's precedents allow great leeway at the sentencing phase. And he noted that when judges sentence defendants in non-capital crimes, they routinely admit similar evidence to justify a longer sentences. "If courts admit evidence of past criminal behavior, unrelated to the crime at issue, to show aggravating circumstances, why should they not do the same to show mitigating circumstances?" he asked.
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