The Marathon Bomber, the Death Penalty, and the Biden Administration

On April 15, 2013, Dzhokhar Tsarnaev and his brother plotted a massacre as an attack on the country that had generously allowed him to come here and go to college. Tsarnaev intentionally chose children as his primary targets, setting his bomb down beyond a group of children near the Boston Marathon finish line.

Last month, AP reported that the President-elect’s spokesman said, “President-elect Joe Biden is against the death penalty and will work to end its use.”

Really? End its use means end it for all murderers, even the very worst. Does he really mean that? If so, he has a chance to show it right out of the gate.

Tsarnaev’s death sentence was overturned on appeal by the Court of Appeals for the First Circuit on July 31. The government filed its petition for writ of certiorari (i.e., request for the Supreme Court to review that decision) on October 6. Tsarnaev’s lawyers filed their brief in opposition to the petition yesterday. The case is United States v. Tsarnaev, No. 16-443.

Here is the description of the crime and its consequences, from the government’s petition:

On April 15, 2013, respondent and his brother Tamerlan—a fellow jihadist—walked to the Boston Marathon’s finish line. Gov’t C.A. Br. 6, 13-14. Each carried a backpack containing a homemade pressure-cooker shrapnel bomb, filled with BBs and nails, that could be detonated remotely. Id. at 15. Tamerlan placed one bomb at a crowded spot near the finish line, and respondent placed the other down the street directly behind a group of children watching the race. Id. at 15-16. About 20 seconds after the brothers spoke on the phone, Tamerlan’s bomb exploded. Id. at 16. Respondent then moved away from his own bomb, which detonated a few seconds later. Ibid.

The bombs caused devastating injuries that left the street with “a ravaged, combat-zone look.” App., infra, 4a. “Blood and body parts were everywhere,” littered among “BBs, nails, metal scraps, and glass fragments.” Id. at 4a-5a. “The smell of smoke and burnt flesh filled the air,” and “screams of panic and pain echoed throughout the site.” Id. at 5a.

The first bomb “completely mutilated” the legs of race spectator Krystle Campbell, causing her to bleed to death on the sidewalk while her friend attempted to comfort her. App., infra, 5a. The second bomb, placed by respondent, “filleted open down to the bone” the leg of Lingzi Lu, a Boston University student. Ibid. People nearby worked frantically to save Lu’s life and pleaded with her to “[s]tay strong,” but she died within minutes. Id. at 5a-6a. The bomb placed by respondent “also sent BBs and nails tearing through eight-year-old Martin Richard’s body, cutting his spinal cord, pancreas, liver, kidney, spleen, large intestine, and abdominal aorta, and nearly severing his left arm.” Id. at 6a. The boy “bled to death on the sidewalk—with his mother leaning over him, trying to will him to live.” Ibid.

In addition to killing three people, the bombs “consigned hundreds of others to a lifetime of unimaginable suffering.” App., infra, 6a. Among many other severe injuries, victims lost limbs, their sight, or their hearing. Ibid.; see Gov’t C.A. Br. 21-25. The bomb placed by respondent, in particular, caused eight people to lose their legs. Gov’t C.A. Br. 22. One was the six-year-old sister of Martin Richard. Ibid. The same bomb gashed the stomach of Lingzi Lu’s friend so severely that she had “to hold her insides in.” App., infra, 5a.

Are you really opposed to the death penalty in all cases, Mr. President-elect? If so, this is the case to take the action. This is the case that poses the question in its starkest terms. Don’t chicken out and announce it in some borderline case on the ragged edge of deserving the death penalty. Man up and announce it in the case that screams for it. Direct the Solicitor General to stipulate to the dismissal of the certiorari petition, and announce to the nation that you will not seek a new death sentence for Tsarnaev on remand.

Let’s see what kind of reaction you get.