Why is the Boston Marathon bomber, Dzhokhar Tsarnaev, still alive exactly a decade after he and his brother Tamerlan executed the finish-line bombing that killed three and injured hundreds, and then killed a policeman?

A jury convicted Tsarnaev and sentenced him, and no less an authority than the Supreme Court has ruled that the death penalty is in order. The answer lies in the Biden’s administration’s moratorium on executions, which shields those on death row from the punishment they have merited. 

Dzhokhar’s older brother Tamerlan was killed in the post-bombing melee —  meaning that only Dzhokhar has stood trial for that act of civic carnage. Tamerlan has been connected to an unrelated killing of three men at Waltham, in 2011, ostensibly to offer a macabre marking of the anniversary of September 11, 2001.   

The younger Tsarnaev claimed inspiration from the teachings of an American advocate for Al Qaeda, Anwar al-Awlwaki, and was convicted of all 30 charges he faced, including using a weapon of mass destruction resulting in death. That verdict was handed down in April 2015, and he was sentenced to death two months later.     

The plot was twisted in July 2020 by a panel of the United States Court of Appeals for the First Circuit, which found that the trial should not have been held at Boston, that the jury was improperly selected, and that evidence was improperly excluded. 

The appellate riders overturned the death penalty, but noted, “Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution.” The Department of Justice appealed to the Supreme Court, which in a 6-to-3 decision swatted away the First Circuit’s objections. 

In an opinion penned by Justice Clarence Thomas, the court held, “The District Court did not abuse its broad discretion by declining to ask about the content and extent of each juror’s media consumption regarding the bombings.” That is because jury selection falls “‘particularly within the province of the trial judge.’”

Justice Thomas found the trial court’s handling of jury selection “reasonable and well within its discretion” considering the difficult decisions necessitated by the case’s saturated publicity. The majority found that “Dzhokhar Tsarnaev committed heinous crimes. The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.” 

In dissent, Justice Stephen Breyer raised the need for a “degree of authority for the courts of appeals, closer to the fray, to issue at least some supervisory rules,” arguing that such a remit “facilitates the flexibility needed in our geographically dispersed multicircuit system.” 

For the moment, though, all of this juridical disputation is the equivalent of so many angels dancing on the head of a pin because the Biden administration has shuttered federal executions. 

That red light came after President Trump restarted the ultimate penalty after a two-decade hiatus. His DOJ applied it with gusto, overseeing more executions than any president had in 120 years. 

In the year 2020 alone, 12 men and one woman were executed, more than had been in the previous 56 years combined. The death row rolls were culled by a third, leaving around 50 men slated for execution. Federal policy does not affect state executions. 

In announcing the moratorium, Attorney General Garland opined, “The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely.” 

Mr. Garland added that “serious concerns have been raised about the continued use of the death penalty across the country, including arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases.”

A former spokeswoman for President Biden, Jennifer Psaki, now a television personality, explained that the president  “knows the deep pain” that Tsarnaev’s crime caused but harbors “deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of justice and fairness.”