The Government Wants to Kill the Boston Bomber – But Can It?

Boston Bomber

Nearly seven months to the day after a bomber killed three people at the 2013 Boston Marathon, federal prosecutors are looking to return the favor.

US Attorney Carmen Ortiz communicated to US District Court Judge George O’Toole that she intends to pursue capital punishment for Dzhokhar Tsarnaev if he is found guilty of murder by setting off two bombs at the April 15th race. The attack also injured more than 260 people.

Massachusetts no longer has a death penalty statute. Capital punishment in the state was not repealed by public referendum, as in other states, but rather overturned by a state Supreme Court ruling that characterized the phrasing of the law as unconstitutional. Tsarnaev, however, is being prosecuted under federal terrorism laws. Washington reserves to itself the right to execute those found guilty of capital crimes under its jurisdiction. If the accused bomber is indeed convicted, he could become the fourth person condemned to die by the government since its power to do so was restored in 1988.

The case is strong and conviction appears likely. Video footage, eyewitnesses, and forensic evidence all indicate Tsarnaev’s involvement. Yet if US Attorney General Eric Holder decides to accept Ortiz’s recommendation, the move to attempt to enforce the death penalty would be something of a bold one on the part of the Department of Justice.

The citizens of Massachusetts – from which the jury will be pulled for the sentencing hearing – has traditionally been a morass of competing opinions on capital punishment. Analysts acknowledge that voters in the state tend to lean left, and thus no governor or legislature has elected to confront the issue of re-drafting a statute for executing criminals since the original was overturned. This does not mean, however, that the potential jury pool is unilateral in opposing the punishment. An exploratory referendum to plumb public opinion on the matter found that a small majority support the measure. Furthermore, a Massachusetts jury has granted the death penalty for federal crimes once before.

Of course, juries in the state have rebuffed execution many more times. The fundamental consideration for Holder is how much the recent attacks weigh on the minds and hearts of jurors. Moreover, that pathos has to surmount several other mitigating factors. Tsarnaev maintains that his brother, killed in a shootout with the police as they attempted to apprehend him, was the mastermind of the plot; if the defense supports this version of events, it removes a great deal of the premeditation requirement for the death penalty. Tsaranaev also has no prior criminal record and never pinged the Department of Homeland Security’s radar through his online activities. Although the defendant’s participation in the attack is strongly evidenced, the extent of that participation can leaven the propriety of the death penalty.

Tsarnaev is represented in court by Judy Clarke, a public defender who has a history of converting threats of capital punishment into plea deals. Notably, she averted death sentences for Olympic Park bomber Eric Rudolph and the “Unabomber”, Theodore Kaczynski. Should Holder decide to go through with the proposed sentencing recommendation, Clarke is likely to attempt a similar agreement to exchange a guilty plea and cooperation with authorities for life in federal prison.

Judge O’Toole has given the Justice Department has until January 31, 2014 to weigh these considerations in making its decision.

By Daniel Annear

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