The government has provided inadequate explanations for why it is preventing the man convicted of the Boston Marathon bombing from contacting his nieces and nephews by phone or mailing photographs to his family and attorneys, a federal judge determined.

Dzhokhar Tsarnaev, who is responsible for killing four people in April 2013 and is incarcerated at the Administrative Maximum Facility in Florence, asserted various constitutional violations stemming from the special administrative measures, or SAMs, the government has imposed on him behind bars. Under the SAMs, Tsarnaev is only allowed telephone calls with his immediate family members, and cannot mail “hobby crafts or photographs.”

Those prohibitions, Tsarnaev argued, violate his First Amendment rights and amount to cruel and unusual punishment under the Eighth Amendment.

This week, U.S. Magistrate Judge Michael E. Hegarty warned that the federal government’s answers to those allegations were underwhelming. Even though the SAMs may be justified for Tsarnaev, “I still have to be presented with some articulable basis made by a responsible government authority,” Hegarty wrote in a March 7 order.

Under federal law, the U.S. attorney general may authorize wardens to implement special administrative measures on inmates to protect against death or serious bodily injury. As part of that goal, there can be limitations on a person’s correspondence or use of the telephone if those restrictions are “reasonably necessary to protect persons against the risk of acts of violence or terrorism.”

The Federal Bureau of Prisons imposed SAMs on Tsarnaev soon after his arrest. The current measures only allow him to call his immediate family, not his nieces and nephews. Immediate family members may not even permit others to listen in or describe the call to a niece or nephew afterward. In-person visits, however, are permitted.

Tsarnaev, representing himself, argued prison officials are imposing greater restrictions than are necessary to prevent violence or terrorism.

“The SAMs infringe on my right to associate with my family, and this infringement is not reasonably related to any legitimate penological interest,” he wrote to the court.

Hegarty quickly dismissed the idea that the prohibition on Tsarnaev speaking to his nieces and nephews constituted cruel and unusual punishment. He also noted the government’s legitimate interest in preventing Tsarnaev from indoctrinating young children.

On the other hand, the government’s response failed to illustrate to the magistrate judge why in-person visits from Tsarnaev’s nieces and nephews are acceptable, but phone calls are not.

“Even assuming the legitimate interest in protecting children from terrorist indoctrination, I cannot discern a rational basis in the record for treating Plaintiff’s in-person and telephone communications differently,” he wrote. “Both are monitored in real time by either U.S. Marshals, BOP staff, or Federal Bureau of Investigation personnel, and both could involve dangerous communications transmitted quickly before the monitor can break the conversation.”

The government claimed that national security officials “can rationally conclude” there are higher risks of passing dangerous information over the phone, but failed to cite to any data. Hegarty countered that in-person visits could provide “an opportunity for nonverbal communication,” thereby presenting a different set of risks.

Hegarty voiced the same complaint in analyzing the prohibition on Tsarnaev sending mail directly to three of his nieces and nephews. The government argued that national security officials, again, “can reasonably decide” that dangerous information might fall into those relatives’ hands, without providing further analysis.  

As for the restriction on Tsarnaev sending photographs to his family and lawyers, Hegarty found a different problem with the government’s reasoning.

Tsarnaev initially challenged this SAM through an administrative grievance, which the Bureau of Prisons denied. In doing so, the bureau indicated it did not have the authority to modify the SAM, but rather, “it was determined that the SAM has been properly applied.”

“I am not satisfied with the vague and veiled language used here,” Hegarty scolded the government.

The magistrate judge felt it was possible the government would be able to clarify how the Bureau of Prisons handled Tsarnaev’s grievance and who, in fact, “properly applied” the SAM. He declined to rule on the government’s request to dismiss Tsarnaev’s lawsuit and instead gave the government the chance to better explain itself through additional court filings.

Tsarnaev and his now-deceased brother, Tamerlan, placed homemade bombs at the 2013 Boston Marathon, which killed three people and injured more than 250 others. The Tsarnaev brothers also murdered a police officer shortly afterward. Prosecutors painted Dzhokhar Tsarnaev as a homegrown terrorist with extremist materials in his possession at the time of the bombing.

A jury found Tsarnaev guilty of 30 counts, including the use of a weapon of mass destruction, bombing and malicious destruction of property. Seventeen of the charges authorized life in prison or capital punishment. Tsarnaev’s jury recommended a death sentence.

The federal appeals court based in Boston vacated Tsarnaev’s death sentence in July 2020, but the U.S. Supreme Court reversed that decision last week by a 6-3 vote.

The case is Tsarnaev v. Garland et al.