The United States Supreme Court reinstated the death sentence for convicted Boston Marathon bomber Dzhokhar Tsarnaev on March 4. The decision is the latest example of the conservative majority’s determination not to let anything, even simple fairness, prevent the federal government or the states from executing death row inmates.
The Tsarnaev ruling also puts the Biden administration in something of a bind.
Because of the horrific nature of his crimes, the Court’s decision forces the administration to decide whether to make an exception to its previously declared moratorium on federal executions and put Tsarnaev to death or to continue to include him in it.
The Biden administration should quickly put any doubts to rest and announce that it will not execute him.
The court also used the Tsarnaev case to expand trial judges’ authority to limit the kind of mitigating evidence that capital defendants may introduce in the sentencing phase of their trials. Its decision reduces the constitutional protections afforded capital defendants, misinterprets federal law, and eases the way for death sentences in future cases.
Last week’s Supreme Court ruling reversed the July 2020 decision of the First Circuit Court of Appeals that Tsarnaev had been denied a fair trial.
The Circuit Court found that the trial judge erred when he ruled that Tsarnaev’s lawyers could not ask potential jurors a detailed set of questions about any exposure they might have had to pre-trial publicity about the bombing, Tsarnaev, or his case.
It also found that the trial judge should not have excluded evidence from the sentencing trial about prior criminal activity involving his older brother, Tamarlan. Tsarnaev claimed that his brother was the mastermind of the Marathon bombing.
As Judge O. Rogeriee Thompson put it in her opinion for the Court of Appeals majority, “A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished.”
Justice Clarence Thomas, writing on behalf of his conservative colleagues on the Supreme Court, was unmoved by that appeal to fairness.
He started his opinion with an extended and heartbreaking description of what Tsarnaev did in Boston on April 15, 2013, and the devastating effects on the bombing’s victims. This marshaling of facts about the crime predictably foreshadowed the legal result he would reach.
Responding to Tsarnaev‘s claims about jury selection, Thomas argued that “The District Court did not abuse its discretion by declining to ask about the content and extent of each juror’s media consumption regarding the bombings. Jury selection,” Thomas continued, “falls ‘particularly within the province of the trial judge,’…whose broad discretion in this area includes deciding what questions to ask prospective jurors.”
And on the claim about the erroneous exclusion of mitigating evidence, Thomas went out of his way to offer a very narrow reading of one of the Supreme Court’s most important death penalty precedents, Lockett v Ohio.
In Lockett, decided in 1978, the Court held that “The Eighth and Fourteenth Amendments require, in all but the rarest capital cases, that sentencers not be precluded from considering a range of mitigating factors before imposing the death penalty. These factors included any aspect of a defendant’s character or record and any circumstances of the offense proffered as a reason for a sentence less than death.”
Thomas wrote that Lockett stands “only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all.”
He also offered a similarly cramped reading of the Federal Death Penalty Act (FDPA) which offers guidance to federal judges in capital cases. He found that Tsarnaev’s trial judge had reasonably concluded that the evidence the defendant wanted to introduce about his brother and the crime spree that he allegedly induced Dzhokhar to join “lacked probative value, would confuse the jury, and ultimately would be nothing more than ‘a waste of time.’”
Thomas’s treatment of Lockett and FDPA will mean that the death penalty process will be harsher and more unfair for all capital defendants in the future.
Writing about Lockett’s importance, law professor Jeffrey Kirchmeier has noted that “If jurors did not know the important details about a capital defendant, they would not be able to fully assess a defendant’s culpability. And many people who might have otherwise been sentenced to death were saved by the commands of Lockett.”
And, as Justice Stephen Breyer observed in his dissent in the Tsarnaev case, FDPA’s language is clear. It says that “ ‘information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor’ regardless of whether that information would be admissible under normal evidentiary rules.”
In addition to its impact on death penalty law and the rights of capital defendants, the Supreme Court ruling does not mean that the litigation in Tsarnaev’s case is over. Instead, it puts the case back on the Biden administration agenda.
The administration’s position in any subsequent litigation will be closely watched. Its handling of the Tsarnaev case already has caused great chagrin among death penalty activists. It began last June when the administration filed a brief in the case asking the court to do exactly what it did last Friday.
At that time, White House issued an odd statement distancing itself from what its own Justice Department had done and asserting that the president had not backed away from his campaign promise to try to end the federal death penalty.
This double speak was surprising given what Joe Biden said about capital punishment as a candidate for the presidency. During his campaign, Biden pledged that he would stop federal executions, propose legislation to abolish the death penalty at the federal level, and provide incentives for states to follow suit.
He delivered on the first of those promises in July, 2021 when Merrick Garland announced the moratorium on federal executions.
As to the other two commitments: silence.
After the court announced its decision in Tsarnaev’s case, the Biden administration again refused to clearly renounce the death penalty for him. Reacting to the Supreme Court’s decision, White House press secretary Jen Psaki said only that the president “believes that Tsarnaev should be punished,” but has “grave concerns about capital punishment as administered.”
It may be hard for anyone to be sympathetic to Tsarnaev, let alone a politician worried about his standing with moderate voters. In light of the Supreme Court decision, the administration is likely to come under pressure from victims’ groups and law and order conservatives to continue to support Tsarnaev’s execution.
That is unfortunate. But the real test of commitment to ending the death penalty comes when the crimes are most gruesome and the defendant the least sympathetic. The Biden Administration now faces that test.