KATHARINE Q SEELYE
SINCE the federal death penalty was reinstated in 1988, attorneys general have authorised it for about 500 defendants in the US. By the end of the month, there may be yet another: the accused Boston Marathon bomber, Dzhokhar Tsarnaev.
Attorney General Eric H Holder Jr must decide by January 31 whether to pursue the death penalty, but even if he does so, it is far from certain that Tsarnaev would actually face execution. Of those 500 defendants, only three have been executed, the last one a decade ago.
Still, Holder’s job is not to weigh the probabilities of Tsarnaev’s execution. Instead, he must decide whether the aggravating factors that might justify death in this case, like the indiscriminate killing, outweigh any mitigating factors, such as the possibility that Tsarnaev, who was 19 at the time, was under the sway of his older brother.
While Holder has said he does not personally support the death penalty, he has authorised its use several times, and many legal experts expect that he will do so again.
A decision to pursue the death penalty begins with a recommendation to the attorney general from the relevant US attorney — in this case, Carmen M Ortiz, whose team is prosecuting Tsarnaev for the bombings on April 15 that killed three people and injured more than 260. A police officer was also killed in a subsequent manhunt for Tsarnaev and his older brother, Tamerlan, 26, who was killed in a shootout with police.
In June, a federal grand jury returned a 30-count indictment against Tsarnaev, including 17 that could carry the death penalty. He has pleaded not guilty. The death penalty has not been used in Massachusetts since 1947, and the state banned it in 1984. But because Tsarnaev is charged under federal law, the federal death penalty applies.
As part of her decision-making process, Ortiz surveyed the families of victims. The responses were confidential, as was Ortiz’s recommendation to Holder, although few legal experts doubt she asked him to authorise the death penalty.
The factors that Holder is to consider include the strength of the evidence against Tsarnaev, the role he played in the capital offence, any prior criminal record, whether he has accepted responsibility for his conduct, and the views of victims’ families.
The families of those killed in the bombings have generally avoided public discussion of the matter. Patricia Campbell, the mother of Krystle Campbell, 29, told The Boston Globe in July that while she had long opposed the death penalty, she was reconsidering her position. “Under the circumstances,” she said, “an eye for an eye feels appropriate.”
The family of Martin Richard, the 8-year-old boy who was killed, declined to discuss their views. The family of the third person who was killed, Lu Lingzi, 23, is in China
If the death penalty is authorised for Tsarnaev and his case goes to trial, the first hurdle would be to find a jury willing to impose it. Anyone opposed to it would be disqualified. If they convicted Tsarnaev, all 12 jurors would then have to agree unanimously in a separate phase that he be put to death.
Another challenge for prosecutors is that the defence team includes Judy Clarke, who is renowned for her ability to humanise her clients — including Ted Kaczynski, the Unabomber, and Zacarias Moussaoui, the September 11 conspirator — and keep them off death row.
With disclosures of wrongful convictions, racial disparities, prolonged delays and excessive costs, the political climate for capital punishment has grown less hospitable. Since 2000, juries have favoured life over death by a ratio of 2-to-1.
Still, 70 per cent of Americans favour the death penalty for Tsarnaev, according to a nationwide poll in May.
The story appears to be different in Massachusetts though. In a statewide poll for The Boston Globe in September, only 33 per cent of respondents favoured the death penalty for Tsarnaev, while 57 per cent said he should receive life without parole.
Defence has been weighing whether to try to move the trial out of Boston. However, although it was the scene of the crime, the overall atmosphere in Boston may be less hostile to Tsarnaev than elsewhere. Even in the immediate aftermath of the bombings, the state legislature overwhelmingly rejected a brief attempt to revive the state death penalty. And the Boston Bar Association recently released a report in which it denounced the federal death penalty, calling its pursuit “almost always an empty and an inordinately expensive gesture”.