Attorney General Merrick Garland faces his first test on federal executions as the Supreme Court considers reinstating a death sentence for the Boston Marathon bomber.
The court since October has been mulling a Trump-era federal appeal to rehear a death penalty case against Dzhokhar Tsarnaev, who, along with his brother, killed 3 people and injured more than 200 others at the 2013 Boston Marathon. When then-Attorney General William Barr took the case to the high court, he vowed to do “whatever’s necessary” to see Tsarnaev executed.
But the Biden administration has displayed a contrary attitude on the issue. Biden promised to end the federal death penalty in 2019 after the Trump Justice Department resumed executions. Garland said during his confirmation hearings that he would not oppose a moratorium, adding that he had concerns about the death penalty’s application under former President Donald Trump.
Still, Garland said, he did not regret securing a death sentence for Timothy McVeigh, who killed 168 people in the 1995 Oklahoma City Bombing, leaving open the question of whether he will continue supporting the Tsarnaev appeal.
At the time, Garland declined to comment on his opinion of the Tsarnaev case since it is open litigation and he was a sitting judge when the question was asked. The Justice Department did not return a request for comment.
Tsarnaev, for his part, has attempted to win the new administration’s favor. The 27-year-old, who is currently serving out a life sentence, filed
a handwritten complaint last week detailing the ways that he has been mistreated in his Colorado supermax prison. Tsarnaev is pushing for the Supreme Court to reject reexamining his case.
It is unlikely that Garland will keep up Barr’s push for Tsarnaev’s execution, especially since Biden has been so forceful in his opposition to the death penalty at large, said Michael Meltsner, a professor at Northeastern University School of Law.
“It would be highly inappropriate to exempt any offender, especially one whose death sentence has been set aside by a court of appeals, from a policy change that the administration bases on doubts about the legality or propriety of capital punishment,” he said, pointing to Biden’s proposed moratorium on executions.
Tsarnaev was sentenced to death in 2015. The 1st U.S. Circuit Court of Appeals vacated his sentence last summer, finding that the court that previously convicted him had failed to conduct its jury selection properly.
In the majority opinion for the case, Judge Ojetta Thompson wrote that the ruling did not exonerate Tsarnaev in any way and advised that the bomber be given another trial to see if he should be executed.
"Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution," Thompson wrote.
The Trump Justice Department responded to the 1st Circuit's opinion by asking the Supreme Court to overrule and order Tsarnaev's execution to proceed. Then-acting Solicitor General Jeffrey Wall described in graphic detail how Tsarnaev's victims died and said that "one of the most important terrorism prosecutions in our nation’s history" should not be left to the appeals court. Tsarnaev pushed back in his own brief, arguing that the Supreme Court does not have the standing to review the case.
Tsarnaev’s fight was underscored by a late-term spate of executions that Trump’s Justice Department appealed to the Supreme Court. In almost every case, the court removed stays of execution, drawing outrage from anti-death penalty activists.
Justice Sonia Sotomayor, who has voted against the death penalty, wrote a blistering rebuke of her colleagues in one such case.
“This is not justice,” Sotomayor said of the Trump administration’s last-minute push for executions. “After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not.”
The Tsarnaev case, however, presents different circumstances. The Boston Marathon bombing happened years ago and dominated news cycles for months. Tsarnaev only got out of his death sentence because of a technicality.
Backing off Trump's push for his execution could be an awkward maneuver. That's why it's more likely that Garland will stay silent on the case until the court chooses whether or not to take it up, said Daniel Medwed, the co-founder of the Innocence Network, a legal nonprofit group that serves wrongfully convicted people. It's already unlikely that the high court will take up the case since there are no new legal issues presented and because the 1st Circuit's ruling does not conflict with any other appeals court.
If the court turns down the case, there is little likelihood that the Biden Justice Department will keep pushing for the death penalty, Medwed added.
"I very much doubt that Biden will seek the death penalty in a retrial," he said. "His team could simply say that it is respecting the 1st Circuit decision and that putting people through a new trial nearly a decade after the bombing would reopen wounds and prolong the suffering of victims."
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
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