WASHINGTON – If the Obama administration tries for the death penalty against Boston Marathon bombing suspect Dzhokhar Tsarnaev, it could face a long, difficult legal battle in a state that hasn’t seen an execution in nearly 70 years.
Attorney General Eric Holder will have to decide several months before the start of a trial – if there is one – whether to seek death for Tsarnaev.
It is the highest-profile such decision yet to come before Holder, who personally opposes the death penalty.
Tsarnaev will be arraigned in U.S. District Court in Boston this afternoon – the first public court appearance for the teenager who was found wounded in a boat stored in a suburban backyard after a massive manhunt and a shootout with police in which his brother died last April.
If you have the death penalty and don’t use it in this kind of case where someone puts bombs down in crowds of civilians, then in what kind of case do you use it? said Aitan D. Goelman, who was part of the legal team that prosecuted Oklahoma City bombing figures Timothy McVeigh and Terry Nichols.
In the past 4 1/2 years, the Justice Department has sought executions in several instances. But in an indication of how protracted the process can be, none of the administration’s cases has yet put anyone on death row.
Massachusetts abolished its own death penalty in 1984, but Tsarnaev is being prosecuted in federal court. Since the federal death penalty was reinstated in 1988, only three people, including McVeigh, have been executed. Others have pending appeals.
In cases where federal juries have chosen between life and death, they have imposed twice as many life sentences as death sentences – 144 to 73 – according to the Federal Death Penalty Resource Counsel Project, a two-decade-old group created by the Administrative Office of the United States Courts.
The jury pool for a death penalty case against Tsarnaev would come from a state that has rejected repeated efforts to reinstate capital punishment.
However, a former U.S. attorney in Massachusetts, Michael J. Sullivan, says viewing the state as opposed to the penalty is not entirely correct.
Voters have supported reinstating the death penalty in non-binding referendums. And when Sullivan was U.S. attorney in Boston, his team of prosecutors won a death penalty verdict. That case is on appeal.
I’m not suggesting there’s strong interest in reinstating the death penalty in Massachusetts, but I think jurors in a federal case would be very thoughtful and under the right circumstances would vote in favor of the death penalty, said Sullivan.
Before the Justice Department decides to seek the death penalty, a case moves through three tiers of review by federal prosecutors.