Boston bombing prosecutors take time to decide whether to seek death penalty

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Dzhokhar Tsarnaev
It is unlikely Dzhokhar Tsarnaev would be offered a plea bargain to avoid the death penalty. Photograph: Reuters

The US government is likely to take at least a year to decide whether or not to seek the death penalty for the surviving Boston Marathon bombing suspect, legal experts say, as a lengthy and politically sensitive review process gets under way.

Dzhokhar Tsarnaev, 19, is likely to have to wait until the summer of 2014 before he learns whether he might face lethal injection for his alleged role in the bombings that killed three people and injured more than 250. The calculation will ultimately be made by Eric Holder, the US attorney general, acting on the advice of prosecutors in Massachusetts, led by US attorney Carmen Ortiz, as well as a special review panel in Washington DC.

The question of whether or not to try the alleged marathon bomber as a capital case is one of the resounding challenges facing prosecutors, which they will begin deliberating once formal charges have been brought before a grand jury. Given the horrific nature of the Boston bombing and the large number of victims, there is already mounting political pressure to go for capital punishment, with two prominent Democratic senators, Charles Schumer and Dianne Feinstein, having indicated they favour it.

Pushing prosecutors in the other direction is the fact that Massachusetts, the state in which the bombings took place, does not have the death penalty on its statute books. Prosecutors will have to take on board the possibility that a local jury might be disinclined to impose a death sentence given the prevailing opposition to it within the state.

At several stages in the review process, Tsarnaev's defence lawyers will also be allowed to present their arguments for why he should be spared the death chamber. They are likely to ask for time to be able to assemble evidence relating to his background, influences and other mitigating factors, which may last several months.

Sam Buell, a law professor at Duke University and a former federal prosecutor in Boston, said that "based on what we now know, it seems likely that the government will seek the death penalty". But he added that the outcome would not be certain until the defence had presented its case.

Federal prosecutors have been known to drop the death sentence as part of a plea bargain in which the defendant pleads guilty or agrees to testify against others. But Buell thought that a plea bargain was unlikely, at least early on in the Tsarnaev prosecution, as it might appear to be insensitive towards the victims of the bombing.

The federal death penalty is one of the more contradictory elements of America's highly contradictory approach to capital punishment. Being federal, it is supposed to be applied equally and evenly across all 50 states, but in practice it is extremely patchy. Of the 59 prisoners held on federal death row (two of whom are female), almost half were convicted for crimes committed in just three states – Texas (12), Missouri and Virginia (six each). Fifteen states have just one federal death row inmate each, and 23 have none.

"Federal law is supposed to be applied uniformly across the country, but in reality it clearly hasn't been," Buell said.

Massachusetts, which outlawed executions in 1984, has one federal death row prisoner. This week, legislators in the Massachusetts House of Representatives tried to reinstate the death penalty in a move started before the bombings but given added impetus by the attack; the chamber voted to postpone debate until more research was done.

Richard Dieter, an authority on capital punishment at the Death Penalty Information Center, said that should prosecutors decide to seek execution for Tsarnaev, success was by no means assured. "It's not at all a foregone conclusion that if they seek it, they will persist in seeking it, and that if they persist in seeking it they will achieve it," he said.

Dieter cited three cases in which federal prosecutors initially said they would go for the death sentence but in the end settled as part of a plea bargain for life without parole. That applied to the Unabomber, Ted Kaczynski, who avoided death by pleading guilty to all federal charges in 1998; Eric Rudolph, who perpetrated the 1996 Atlanta Olympic bombing; and the 2011 Tucson mass shooter, Jared Loughner.

Even if prosecutors seek the death penalty for Tsarnaev, they might not manage to persuade the jury to return a death sentence. Zacarias Moussaoui, who was charged with capital crimes in connection with 9/11, escaped execution when a federal jury in Virginia rejected the death penalty for him in 2006.

Should Tsarnaev be found guilty and put on federal death row, that too would be just the start of it. Like any death row, the federal one is beset with legal issues that tend to delay the actual carrying out of the ultimate punishment for years, if at all.

Only three people have been executed since the federal death penalty was restarted, in 1988. The most famous of those was Timothy McVeigh, the Oklahoma City bomber, who in effect volunteered to die by suspending his appeals and was executed in 2001.

In Tsarnaev's case there would be an added problem: he would not be able to be executed in Massachusetts as it has prohibited the practice, so would have to be sent to a neighbouring state that does allow capital punishment. When Gary Sampson, Massachusetts' only existing federal death row inmate, was sentenced to death, the judge had to assign another state to handle his execution. Judge Mark Wolf ordered that when the time came he would be sent to New Hampshire.

The ruling was widely seen as ridiculing the imposition of a federal death penalty in a state that does not allow capital punishment. The last time New Hampshire carried out an execution was in 1939, and though the state technically permits executions it is wholly unprepared to carry one out.

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