Now, the Biden Justice Department will have to decide either to argue in favor of the death sentence in Tsarnaev’s high-profile case or retreat.
A Justice Department spokeswoman declined to comment on the high court’s action, which sets up arguments before the justices likely sometime this fall.
While the Justice Department shifted or reversed its position in a series of cases soon after Biden was sworn in, it made no move to alter the previous administration’s position that the death sentence against Tsarnaev was legally sound.
Attorney General Merrick Garland said during his confirmation hearings that he expects that the Justice Department would implement a moratorium on executions if Biden orders one. The administration has been less clear about whether it would continue to seek the death penalty in court, as the Justice Department has done under prior Democratic administrations, or whether Biden plans to commute the death sentences of the 48 men currently on federal death row.
Prosecutors say Dzhokhar Tsarnaev and his older brother Tamerlan carried out bombings using explosives-filled crockpots at the finish line of the 2013 Boston Marathon, killing three people and injuring more than 260, some severely. Authorities also said the two men were responsible for the shooting of a police officer three days later.
The brothers were cornered in a shootout in suburban Watertown, Mass., four days after the bombings. Tamerlan Tsarnaev was killed during the altercation, after being shot multiple times by police and run over by a car driven by his brother. Dzhokhar Tsarnaev was badly wounded, but survived. Following a trial in 2015, a jury sentenced him to death.
Starting in 2003, the federal death penalty fell into disuse for 17 years due to court challenges and decisions by the Obama administration not to schedule any executions. The Trump administration, late in its tenure, made aggressive moves to restore use of the death penalty.
In Trump’s final seven months in office, the Justice Department carried out 13 executions at the death chamber in Terre Haute, Ind., with the final one coming just four days before Biden was sworn in.
Most death sentences in the U.S. are imposed through trials carried out at the state and local level. About 2,500 people are currently on death row in state prisons, although some large states have halted executions and others have dropped the punishment in recent years.
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