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10 years on, Boston Marathon bomber at the center of death penalty debate

Last March, the U.S. Supreme Court’s conservative majority sided 6-3 with the Biden administration in reinstating the death penalty for Dzhokhar Tsarnaev, who was convicted of helping to carry out the 2013 Boston Marathon bombings that killed three and injured hundreds.

At the time of Tsarnaev’s conviction in 2015, less than one in five Massachusetts residents believed Tsarnaev should be put to death. Although the state’s history with the death penalty is complicated — at least 20 executions occurred during the Salem Witch Trials — public sentiment is against capital punishment in the commonwealth, according to a Boston University law professor.

“The jurisdiction did not support, in this case, Tsarnaev getting the death penalty,” professor Karen J. Pita Loor said in a recent interview. “People overwhelmingly do not support it.”

Legal experts remain perplexed over the Biden administration’s decision to argue in favor of reinstating the death penalty for Tsarnaev after a three-judge panel of the U.S. Court of Appeals for the First Circuit, based in Boston, ruled that his death sentence should be overturned in 2020.

As a candidate, Biden promised to end capital punishment at the federal level.

“Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example,” his campaign website still reads more than halfway through his four-year presidential term.

Even as officials in the Biden administration have expressed support for ending capital punishment, federal prosecutors have continued to push for the death penalty in high-profile cases.

In July 2021, U.S. Attorney General Merrick Garland issued a memorandum pausing all federal executions. As recently as in March, however, the Department of Justice argued in favor of the death penalty for Sayfullo Saipov, who was convicted of carrying out a terrorist attack in October 2017 when eight people were killed on a bike path in lower Manhattan.

At least twice, in the cases of Saipov and Tsarnaev, federal prosecutors have argued in favor of the death penalty even after Garland issued the memorandum.

Months before the Supreme Court heard arguments in Tsarnaev’s case, Loor wrote in a WBUR article about the “perplexing” nature of the case.

A year after the reinstatement of the Tsarnaev’s death sentence, Loor said, the case remains “equally perplexing.”

“It’s very confusing on multiple levels,” Loor said. “He’s not making any statements as president in regards to the death penalty. With the moratorium, they’ve been inconsistent. In a way, they’ve been talking out both sides of their mouths.”

What does the moratorium actually mean?

The memorandum puts a pause on all federal executions while the Department of Justice reviews changes to policies made under the Trump administration — which conducted the first federal executions in nearly 20 years.

“Serious concerns have been raised about the continued use of the death penalty across the country, including arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases,” Garland wrote in the memorandum.

Loor said the Obama administration similarly issued a memorandum that paused all federal executions, but as evident with the executions during the Trump administration, without an outright federal ban, memorandums simply pass on death sentences along to the next administration.

“Biden can certainly order or communicate to the Department of Justice to not seek death sentences and commute death sentences for those on death row and give life sentences,” Loor said. “Biden absolutely has the power to do that.”

Loor wrote in the WBUR article: “The Biden administration is preaching fairness and justice while simultaneously seeking death.”

Under Garland, the Justice Department has not sought the death penalty in any new cases, the Associated Press reported. The administration has withdrawn requests for capital punishment sought by prior administrations against more than two dozen defendants.

So why did the federal government seek the death penalty for Tsarnaev and Saipov?

Boston congresswoman pushes to end capital punishment

In the Supreme Court’s ruling to reinstate the death penalty, Justice Clarence Thomas wrote for the majority, “Dzhokhar Tsarnaev committed heinous crimes. The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

U.S. Congresswoman Ayanna Pressley disagreed with the court’s decision. On the day of the ruling, she said, “(it’s) deeply disappointing, but unsurprising for this far-right majority Court that has shown time and again its contempt for the people.”

Pressley argued that the death penalty is cruel and inhumane and that it has no place in society. She implored Congress to pass the Federal Death Penalty Prohibition Act, a bill for which Pressley is the lead sponsor. It aims to end the federal death penalty in America and write its abolishment into law.

“President Biden gave me his word that no one would be executed by the federal government under his watch, and I fully expect him to keep that promise,” Pressley wrote.

“I was deeply disappointed by the DOJ’s decision to move in conflict with the President’s pledge by seeking to reinstate the death penalty in the Tsarnaev and Saipov cases,” Pressley wrote in a statement to MassLive.

The congresswoman described the Boston Marathon bombing as a “devastating day for our city” and said, “I am deeply committed to accountability and healing for the families robbed of a loved one that day, and the broader City of Boston community.”

Pressley praised a bill she introduced in 2021 and Biden signed into law in December called the Post Disaster Mental Health Response Act, which will work to expand mental health support for survivors of natural disasters and terrorist attacks such as the marathon bombing. She said survivors of the Boston attack joined her earlier this year at a roundtable discussion at Harvard Street Neighborhood Health after the bill was signed.

“As we mark 10 years since the attack and enter a moment of renewed trauma, I remain committed to pursuing policies that promote healing — not those that perpetuate hurt and harm,” Pressley said.

Massachusetts abolished capital punishment in 1984. The federal death penalty became an issue when Trump resumed them in 2020 after a 17-year hiatus. During the Trump administration’s last month, there were 13 federal executions — more than any president in more than 120 years.

The likelihood that Tsarnaev or Saipov will be executed anytime soon is low. If he were ever executed, it would likely be at a U.S. prison in Terre Haute, Indiana, where federal death row is located, according to the Associated Press.

The lack of a clear path by the Biden administration toward abolishing federal executions leaves the fate of inmates on death row in the hands of future administrations.

Problems with death penalty trials

By Biden’s admission, people sentenced to death row are sometimes found innocent.

“Since 1973, over 160 individuals in this country have been sentenced to death and were later exonerated,” Biden tweeted at 5:14 p.m. on July 25, 2019. “Because we can’t ensure that we get these cases right every time, we must eliminate the death penalty.”

To be clear, there is no question regarding Tsarnaev’s guilt.

A three-judge panel of the U.S. Court of Appeals for the First Circuit, based in Boston, upheld Tsarnaev’s convictions on 27 counts. The appeals court, however, ruled in 2020 that a trial judge did not question jurors thoroughly about their exposure to pretrial publicity of the bombing and did not allow evidence concerning Tsarnaev’s brother, Tamerlan Tsarnaev.

“Even where guilt of the underlying crime is clear, whether a defendant is sentenced to death turns less on the gravity of their crime and more on the vagaries of geographic, race and legal assistance,” wrote the executive director of the ACLU, Anthony Romero, in February.

But, as Loor points out, the jury selection process for death penalty trials can be biased.

“It’s quite unfair, and quite problematic on different levels,” Loor said. “If you have a death penalty case, a person is not able to become a juror on a case unless they can say they would be willing to impose the death penalty.”

This is called the death qualification for jurors in capital punishment cases.

Potential jurors can be excluded if they do not declare to prosecutors that they are willing to impose the death penalty.

“My argument is that creates a jury that is biased towards that (the death penalty),” Loor said.

The American Civil Liberties Union agrees with that argument. The civil liberties group has brought challenges to death qualifications in North Carolina, Florida and Kansas arguing that, due to the exclusions, juries are more male, less diverse, more trustful of law enforcement and more likely to vote for guilt in the first instance.

More biased juries have led to more biased outcomes in death penalty trials, the ACLU argues.

Even though Black people only comprised 13% of the nation’s population in 2021, about 40% of inmates on death row in federal prisons were Black.

The proportion of exonerations for people on death row also skews towards people of color.

Since 1973, 97 out of 185 people exonerated were Black. In 67% of those exonerations, the erroneous convictions resulted from misconduct by a government official, according to the ACLU.

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