Supreme Court likely to reinstate death penalty for Boston Marathon bomber

Yesterday, the Supreme Court heard argument in the case of Dzhokar Tsarnaev, the Boston Marathon bomber. A jury sentenced Tsarnaev to death, but the liberal First Circuit Court of Appeals overturned that sentence.

The Washington Post’s report is here. Bill Otis discusses the oral argument here.

The Post infers from the Justices’ questions that the Court will overturn the First Circuit’s decision, thereby reinstating the death penalty. CNN sees it the same way.

I want to comment on two aspects of the case. The first is the liberal Justices’ focus on what strikes me (and I think Bill Otis) as an extremely weak argument — the claim that the district court erred by excluding evidence that Tsarnaev’s older brother, the other Boston Marathon bomber, killed three people during a robbery. That evidence would have taken the form of a blame-the-dead-guy claim by the other party to the robbery/murder, now deceased, that the older Tsarnaev killed the victims.

Supposedly, such evidence would have supported Dzhokar Tsarnaev’s claim that his older brother had undue influence in the younger one’s decision to kill people at the Boston Marathon. Justice Kagan, who is smarter than I am, seemed impressed by this argument. But I’m at a loss to understand why a jury would even consider finding the younger brother less culpable because the older one may have robbed and killed three people.

Fortunately, the argument didn’t move Justices Alito and Kavanaugh. In addition, Chief Justice Roberts seemed willing to defer to the district court’s view that there was no way to resolve the question of whether the older brother actually killed the victims of the robbery. Both he (the older brother) and the other man involved in the robbery/murder were dead by the time of the trial.

The other aspect of the case that interests me relates to the Biden administration’s decision to halt federal executions. Presumably, that policy applies even to a mass murderer like Dzhokar Tsarnaev.

Justice Barrett asked the DOJ’s lawyer about this. According to the Post, the lawyer responded that there would be time for the administration to consider clemency or other issues in Tsarnaev’s case, but that the point here was to reinstate a sentence that was legally justified.

I doubt that even Team Biden will spend time considering clemency for Tsarnaev. Otherwise, the answer is fair enough. The DOJ wants to defend the district court’s decision and the jury’s conclusion as consistent with the law, even though it opposes the death penalty as a matter of policy.

But I would like to hear the Biden administration publicly explain why, as a matter of policy, the Boston Marathon bombers, including the older brother had he been taken alive, shouldn’t be executed for their wanton butchery.

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