Supreme Court agrees to hear death penalty case against Boston marathon bomber Dzhokhar Tsarnaev

John Fritze

WASHINGTON – The Supreme Court agreed Monday to hear a government appeal to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev, granting review of a lower court's decision that errors during the trial tainted his sentencing.

If the justices overturn the appeals court, Tsarnaev's death sentence could be reinstated. If they do not, he would nevertheless serve multiple life sentences in prison.

Tsarnaev, 27, was convicted of dozens of crimes in the terror attack that killed three people in 2013, and he received a death sentence in 2015. The U.S. Court of Appeals for the 1st Circuit threw out the death sentence last year, finding that the judge in the trial failed to ensure a fair jury after wall-to-wall news coverage of the attack. 

Then-Attorney General William Barr promised to appeal, and the Justice Department followed through in October. Government lawyers told the court that unless the justices took action in the case, prosecutors would have to retry the penalty phase of the trial, forcing victims of the attack to take the stand again.

As is its practice, the Supreme Court took the case Monday without comment. The justices will probably hear arguments in the fall.

A reversal could put President Joe Biden in a difficult position because he promised during his campaign to push for the approval of legislation to eliminate the death penalty. Merrick Garland, Biden's pick for attorney general, told lawmakers during his confirmation hearing in February that he had "great" concern about the application of the death penalty by the federal government, which resumed executions under President Donald Trump.

Garland told lawmakers he expected Biden would reinstate a moratorium on the death penalty after 13 federal inmates were executed during the final months of Trump’s administration. The Justice Department declined to comment Monday. 

"President Biden has made clear, as he did on the campaign trail, that he has grave concerns about whether capital punishment as currently implemented is consistent with the values that are fundamental to our sense of justice and fairness," White House press secretary Jen Psaki said in response to the court's decision to hear the appeal.   

Psaki noted that Biden expressed "horror" at the bombing in 2013, but she offered no opinion on the specific case.  

Some conservatives called attention to the notion that Tsarnaev raises an important test of Biden's resolve on the issue.  

"The Biden administration should stand strong in favor of capital punishment for this terrorist, and justice should be done," said Sen. Tom Cotton, R-Ark.

The Biden administration has repeatedly sought to disentangle itself from positions taken at the court by Trump's Justice Department. Officials asked the Supreme Court to dismiss a series of cases involving Trump's effort to cut federal funding for medical centers that refer patients for abortions, for instance.

The new administration and other parties secured dismissals in cases involving several Trump-era immigration policies, as well as questions raised about the 2020 election.

Tsarnaev and his older brother, Tamerlan, planted a pair of bombs near the finish line of the marathon and killed a Massachusetts Institute of Technology police officer during a citywide manhunt. Tamerlan Tsarnaev was killed during a shootout.

Flowers rest at the finish line of the Boston Marathon after the verdict in the penalty phase of the trial of marathon bomber Dzhokhar Tsarnaev, Friday, May 15, 2015, in Boston.

Defense attorneys said Dzhokhar Tsarnaev failed to receive a fair trial because the court did not allow them to probe potential jurors more aggressively about the influence media coverage of the bombing may have had on their impartiality. The court had declined their request to ask potential jurors content-specific questions, such as "What stands out in your mind" from the news they had consumed about the marathon bombing.

The appeals court ruled the judge erred by excluding evidence authorities said implicated Tamerlan Tsarnaev in other murders. Defense attorneys, who sought to move the trial out of Boston, said the evidence could have mitigated Dzhokhar Tsarnaev's sentence by demonstrating his brother's ability to convince others to join in violence.