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October 13, 2021

SCOTUS argument suggests Justices likely to reinstate reversed death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

When the US Supreme Court back in March decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, a smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looks even smarter after today's Supreme Court argument where the Justices questions and comments revealed the predictable ideological split and strongly suggested that a majority of Justices will be voting to reinstate Tsarnaev's death sentence.

The headlines from various press and blog coverage reports on most of the essentials:

From CNN, "Supreme Court conservatives appear ready to endorse death sentence for Boston Marathon bomber Dzhokhar Tsarnaev"

From Crime & Consequences, "SCOTUS Appears Poised to Re-Instate Death Penalty for Boston Marathon Bomber"

From Fox News, "Boston Bomber case: Kavanaugh, Kagan clash in rare testy exchange over mitigating evidence"

From NBC News, "Supreme Court appears likely to allow death sentence for Boston Marathon bomber"

From SCOTUSblog, "Justices appear to favor reinstating death penalty for Boston Marathon bomber"

Interestingly, the second of the two questions presented in the case captured most of the Justices' attention as they explored "Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted."  Some of the questioning on this issue suggested that the Court might have to, or might want to, say something significant about the evidentiary rules that attend the penalty phase of a capital trial.  If they do speak to this issue broadly, the significance of the Tsarnaev case could extend beyond this defendant's awful crimes and ultimate punishment.

October 13, 2021 at 10:13 PM | Permalink


Lyle Denninston on Twitter, the now retired veteran SCOTUS reporter, flagged a question by Barrett:

"Faux pas by new Justice Barrett? In today's hearing on government plea to reinstate Boston Marathon bomber death sentence, she questioned whether the sentence would not be carried out becs. of Biden moratorium on executions. That's not an issue in this case; improper to mention?"

The exact wording can be found in the transcript but she wondered about the "end game" given there is currently a moratorium.

I don't know if it was some sort of faux pas -- I'm not going to match my memory to a guy who covered the Court since the Warren days, but I have heard some rather non-germane questions from the bench.

The answer resisted the idea the moratorium [which is technically somewhat limited to certain concerns] is necessarily permanent -- the lawsuit leaves the options of the Justice Dept. open. Also, some sort of symbolic acceptance of the jury's verdict appears to be promoted.

The question is an interesting practical query but the executions during the Trump years shows the limitations of a mere moratorium (applied by Obama & in effect after three executions by Bush43) without more. I would add that the first question in particular does not appear merely to be death penalty related.

But, some have criticized the Biden Administration for letting this litigation be ongoing. I would share their concerns.


Separately, William Smith is due to be executed next week. The Supreme Court already blocked the execution earlier to allow the presence of a minister in the execution chamber. Other red flags have been raised since then but so far the execution is still scheduled as far as I can tell.

Posted by: Joe | Oct 13, 2021 10:43:59 PM

See here, for a criticism of the sort I flagged.


(I am not surprised at the Biden Administration's move here since his opposition to the death penalty during his campaign was not so absolute that I am shocked by his actions here. I am disappointed by them, but I realize we should carefully judge the statements of people in these cases.)

It also explains how a ruling can have effects on non-capital cases. I would note that this underlines how people like CG who oppose the death penalty see it as a wider effort.

Opposing the death penalty -- this has been a criticism on this very blog -- need not crowd out out things.

Posted by: Joe | Oct 13, 2021 10:50:56 PM

Thanks, Joe. I was intrigued by Barrett's question, and I can see how it might be viewed as impolite though I liked the real-world tone: "If you folks ain't so keen on the death penalty, why are you hear asking us to reinstate a death sentence." And I agree there are lots and lots of connections -- both formal and informal -- between capital and non-capital criminal law and policy, and it will be interest to see whether and how SCOTUS makes its Tsarnaev ruling very fact-specific or broad.

Posted by: Doug B. | Oct 14, 2021 8:52:00 AM

While I missed the first part of the government's argument, it seems like the argument on the voir dire issue for the defense was somewhat weak. Rather than defending the rule used by the First Circuit on the merits, the defense seemed to be that it was within the First Circuit's supervisory authority over the district court. I found it to be week because the First Circuit and the district court are under the Supreme Court's supervisory authority. Not explaining why the First Circuit's rule is appropriate seemed to be a mistake, but counsel might have felt that it was adequately discussed in the briefs, particularly as the emphasis in oral argument seemed to be on the evidentiary issue.

Posted by: tmm | Oct 14, 2021 10:58:49 AM

It seems to me the reactionary majority has been dead set (no pun) on reversing, so if that happens, I don't think it'll be because defense counsel failed to make this or that argument...

Posted by: kotodama | Oct 14, 2021 10:07:09 PM

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