DOJ Explains to SCOTUS Why It's Fighting to Reinstate Death Sentence for Boston Bomber

The Supreme Court took up one of this term's higher-profile cases this week, hearing the Justice Department's arguments for why the death penalty should be reinstated for convicted Boston bomber Dzhokhar Tsarnaev.

On Wednesday, the Justice Department under Joe Biden attempted to persuade the high court to reinstate the death sentence after a lower federal appeals court voided the jury's 2015 verdict.

However, the newest judge on the bench, Associate Justice Amy Coney Barrett raised questions on the biggest elephant in the room: why the government would fight for a reinstatement when Attorney General Merrick Garland has ordered a moratorium on executions in the federal system.

"I'm wondering what the government's end game is here," Barrett asked the DOJ's Deputy Solicitor General Eric Feigin during Wednesday's hearing. "So, the government has declared a moratorium on executions but you're here defending [Tsarnaev's] death sentence."

"If you win, presumably that means he is relegated to living under threat of a death sentence that the government doesn't plan to carry out. So I'm just having trouble following the point," she added.

Feigin argued that the government is pushing for the death penalty as a way to protect the verdict of the 12 jurors, who the DOJ said was thoroughly selected.

Last year, the federals appeals court in Boston ruled that the trial judge failed to question jurors enough about their exposure to the news coverage surrounding the bombing, which killed three people and seriously injured hundreds more.

"The administration continues to believe the jury imposed a sound verdict and that the court of appeals was wrong to upset that verdict," Feigin told the court. "If the verdict were to be reinstated eventually... the attorney general presumably can review the matters that are currently under review, such as the current execution protocol."

DOJ SCOTUS Boston Marathon Dzhokhar Tsarnaev Death
The Department of Justice is asking the Supreme Court to reinstate the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev. FBI

Feigin said that the department was not so much arguing in favor of federal executions before the Supreme Court, but rather that, should a sentence be handed down by a jury, the verdict should be upheld by the courts.

"What we are asking here is that the sound judgment of 12 of [Tsarnaev's] peers—that he wants capital punishment for his personal acts in murdering and maiming scores of innocents, and along with his brother, hundreds of innocents at the finish line of the Boston marathon—should be respected," he said.

The request for the Supreme Court to step in and reinstate the death penalty was initially sought by the Trump administration and has since been renewed by the current administration.

While a number of survivors from the bombing have supported a death penalty sentence for Tsarnaev, some, like Bill and Denise Richard, whose 8-year-old son was killed in the attack, have argued against capital punishment, saying it could lead to a lengthy appeal process similar to the one that has played out.

"The continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives," the Richards family wrote in a 2015 letter published by the Boston Globe.

The Supreme Court is not expected to rule on the case until some time next year.

If the court rules for the Justice Department, Tsarnaev will remain on death row in a Colorado prison, but if it rules for Tsarnaev, the administration will have to decide whether it will attempt to seek capital punishment again or allow for a sentence to life stand.

However, even if the penalty is reinstated, it remains unclear if Tsarnaev would actually be put to death given Biden's opposition to the federal death penalty.