By Aaron Miller-
The U.S Supreme Court is leaning towards the argument of the Biden administration in support of reinstating the death sentence of Dzhokar Tzarnaev, the Boston Marathon bomber, who was 19 years old when he and his 28-year-old brother Tamerlan committed the horrific attack that killed three people.
The argument before the Supreme Court on Wednesday hinged on whether the trial court improperly excluded evidence of his older brother’s influence and whether Tsarnaev was prejudiced by global publicity. The conservative majority appeeared to be supportive of the Bidens administration’s push for execution, though some critics questioned the administration’s stance, given knowledge that Biden had previously said he didn’t bel;ieve in the death penalty.
The Biden’s administration are working within the framework of the highest level of punishment available to match the crime. Some families of victims see the death peanalty as the easy way out, and would prefer murderers to spend the rest of their lives in jail, others find it the exacting punishment for the sie of the crime..
Joe Biden was the first president elected who was openly opposed to capital punishment. His campaign website informed voters: “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.”
So much for the good news. The fact is that capital punishment remains a squalid tool of social control, and that it reinforces the darkest of America’s founding biases.
Biden signed an executive order in April creating the commission. It held its first meeting the following month.
The commission is looking at the issue of expanding beyond the current nine justices or creating a fixed term for justices instead of lifetime appointments.
The Supreme Court currently has a 6-3 conservative majority after Biden’s Republican predecessor Donald Trump made three appointments during four years in office. Trump in 2017 was able to fill a vacancy opened up when his predecessor Barack Obama was in office because Senate Republicans in 2016 blocked consideration of Obama’s nominee to the post, current Attorney General Merrick Garland.
The Supreme Court during its current term is considering major cases in which its conservative majority could restrict abortion rights and widen gun rights, alarming liberals.
Republicans have opposed the idea of expanding the number of justices, which they call “court packing.” Democrats have said the current makeup of the court no longer represents the will of the U.S. electorate.
The last time court expansion was seriously pursued was in the 1930s by Democratic President Franklin Roosevelt after a conservative court impeded his policies aimed at lifting America out of the Great Depression.
White House spokeswoman Jen Psaki told reporters at her daily briefing that the commission’s draft report will be released on Thursday with an eye towa
After hearing nearly 2 hours of arguments, the court’s six conservative justices seemed likely to embrace the Biden administration’s argument that a federal appeals court mistakenly threw out Tsarnaev’s death sentence for his role in the bombing that killed three people near the finish line of the marathon in 2013.
The 1st US Circuit Court of Appeals in Boston ruled last year that the trial judge improperly excluded evidence that could have shown Tsarnaev was deeply influenced by his older brother, Tamerlan, and was somehow less responsible for the carnage.
The appeals court also faulted the judge for not sufficiently questioning jurors about their exposure to extensive news coverage of the bombing..
Tsarnaev’s killed a Boston University graduate student from China; Krystle Campbell, a 29-year-old restaurant manager from Medford, Massachusetts; and eight-year-old Martin Richard, of Boston, is not at issue, only whether he should be sentenced to life in prison or to death.
Justice Amy Coney Barrett was the only member of the court to raise the administration’s pursuit of a capital sentence for Tsarnaev even as it has halted federal executions.
President Joe Biden also has called for an end to the federal death penalty.
Ms Barrett wondered about the “government’s end game”, noting that if the administration wins the case, Tsarnaev would be “living under a death sentence the government doesn’t intend to carry out”.
The main focus was on evidence that implicated Tamerlan Tsarnaev in a triple killing in the Boston suburb of Waltham on the 10th anniversary of the September 11 2001, terrorist attacks.
The evidence bolstered the defence team theory that “Tamerlan influence Dzhokhar, Tamerlan indoctrinated Dzhokhar and Dzhokhar radicalised because of Tamerlan”, lawyer Ginger Anders told the justices.
But the trial judge agreed with prosecutors that the evidence linking Tamerlan to the Waltham killings was unreliable, was irrelevant to Dzhokhar’s participation in the marathon attack and would only confuse jurors.
Justice Elena Kagan said jurors should have been able to decide whether the evidence was reliable.
“That’s the role of the jury,” Ms Kagan said.
But Justice Brett Kavanaugh was among several conservative justices who suggested the judge had good reason to keep the account of the Waltham killings from the jury because both Tamerlan Tsarnaev and Ibragim Todashev, who implicated him, were dead by the time of the trial.
“We don’t know what happened.
“Todashev had all the motive in the world to point the finger at the dead guy,” Mr Kavanaugh said.