Boston bomber: Barrett asks DOJ lawyer why Biden admin wants to reinstate death sentence amid execution pause

Justice Amy Coney Barrett asked, 'What's the government's end game here?'

Justice Amy Coney Barrett pressed a Biden administration lawyer on why it is trying to reinstate the death sentence for Boston Bomber Dzhokhar Tsarnaev even though the attorney general ordered a moratorium on federal executions earlier this year. 

"What's the government's end game here?" Barrett asked Justice Department lawyer Eric Feigin during a Supreme Court oral argument Wednesday. 

Barrett said that if the Biden administration gets its way, Tsarnaev would be "relegated to living under threat of a death sentence that the government doesn't plan to carry out." 

Associate Justice Amy Coney Barrett poses during a group photo of the justices at the Supreme Court in Washington, April 23, 2021. (Erin Schaff/Pool via REUTERS)

Associate Justice Amy Coney Barrett poses during a group photo of the justices at the Supreme Court in Washington, April 23, 2021. (Erin Schaff/Pool via REUTERS) (Erin Schaff/Pool via REUTERS)

Feigin responded that circumstances could shift because a reinstated death penalty would not be the end of litigation or activity on Tsarnaev's case. Plus, he said, the courts should respect the judgment of the jury that sentenced the terrorist to death even if the party in power does not necessarily agree with the idea of the death penalty and might not immediately carry out the sentence. 

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"The sound judgment of 12 of [Tsarnaev's] peers… should be respected," Feigin said. 

The Wednesday oral arguments in Tsarnaev's case came after a district court's 2015 death sentence was overturned by an appeals court over alleged improper handling of the jury's media consumption and the court's exclusion of allegedly mitigating evidence during the sentencing phase. 

The other justices focused primarily on the allegedly mitigating evidence: that Dzhokhar's allegedly domineering older brother, Tamerlan Tsarnaev, strongly influenced Dzhokhar to commit the act of terror and that Dzhokhar would not have done so if it weren't for his brother. 

This file photo released April 19, 2013, by the Federal Bureau of Investigation shows Dzhokhar Tsarnaev, convicted and sentenced to death for carrying out the April 15, 2013, Boston Marathon bombing attack that killed three people and injured more than 260. (FBI via AP, File)

This file photo released April 19, 2013, by the Federal Bureau of Investigation shows Dzhokhar Tsarnaev, convicted and sentenced to death for carrying out the April 15, 2013, Boston Marathon bombing attack that killed three people and injured more than 260. (FBI via AP, File)

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Tsarnaev's defense attorneys wanted to bring up evidence during the sentencing phase that Tamerlan may have been involved in a jihad-related triple-murder in 2011 to bolster their case that Tamerlan was the leader among the two and someone whose influence would have been hard for Dzhokhar to resist. 

But the district court excluded that evidence due to its alleged weakness, something the defense said was not fair because criminal defendants have a right to present mitigating evidence at sentencing. 

The Supreme Court will likely rule in the case by June 2022, when its current term ends.