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December 1, 2013

"Death penalty for Boston bomber a complicated question"

The title of this post is the headline of this new piece from USA Today.  Here are excerpts:

The high-security wing at the U.S. Penitentiary in Terre Haute, Ind., now represents an increasingly complicated backdrop for a decision Attorney General Eric Holder is set to make in the next several weeks on whether to pursue the death penalty in the federal government's prosecution of Boston Marathon bombing suspect Dzhokhar Tsarnaev.

There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others.  There are photographs of Tsarnaev allegedly planting explosives at the site of one of the bombings.

Yet the government's record in carrying out the death penalty is mixed at best, and there are conflicting views about whether the often-delayed penalty is an appropriate punishment if the 20-year-old defendant is convicted in the bombing case.  Since the federal death penalty was reinstated in 1988, only three offenders have been executed and none in the past 10 years....

In the case of Tsarnaev, there are other potentially complicating factors at play for the federal government in Massachusetts, a state long opposed to the death penalty.  In September, less than six months after the attack, a poll commissioned by The Boston Globe found that 57% of Boston residents favored Tsarnaev's facing life in prison without parole, while only 33% supported death. The opposition, in the city deeply scarred by the bombing, crossed political lines with Democrats overwhelmingly favoring life in prison at 61%-28% and Republicans more narrowly supporting prison over death at 49%-46%.

"It's one thing for the government to be willing to impose the death penalty; it will be a lot harder to find people in Massachusetts to serve on a jury who would vote for the death penalty," said Andrew Smith, director of the University of New Hampshire Survey Center, which conducted the poll. "It's not terribly surprising given that it is Massachusetts."

Aitan Goelman, a former federal prosecutor who assisted in the Oklahoma City prosecutions, said the federal government's rarely used execution chamber reflects a system "slanted against" execution. From the mandatory pre-prosecution review to determine whether to pursue the maximum punishment to the actual prosecution, Goelman said, there are required thresholds in the federal system that don't exist in most states....

"The system seems to bend over backwards not to have executions,'' said Goelman, though he said he believes that "at the end of the day," Holder will likely certify the Tsarnaev prosecution as a death penalty case. "If you put a bomb down in a crowd, it becomes one of those cases where you say, 'If not now, when do you ever certify a case as a death penalty case?'" Goelman said.

Richard Dieter, executive director of the Death Penalty Information Center, which advocates against the death penalty, said possible considerations that could work in Tsarnaev's favor are his relative youth and whether Tsarnaev's older brother, Tamerlan Tsarnaev, may have pushed him to take part in bombings.... "Justice might approve seeking the death penalty just to keep their options open," Dieter said, referring to a possible strategy to exact a guilty plea from the defendant.

Among those who have little doubt that death should be pursued against Tsarnaev is a former top Boston police official who worked closely on the investigation. "I don't believe in the death penalty in most cases," former Boston Police commissioner Ed Davis said. "I believe it is appropriate in this case. I would caution everyone to wait until all of the evidence comes out. … There is no explanation for what happened here."

I would be very surprised if AG Holder does not approve seeking the death penalty in this case, and I will be similarly surprised if the case is not ultimately resolved through a plea deal providing for an LWOP sentence.

Some prior related posts:

December 1, 2013 at 12:23 PM | Permalink

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Comments

"Complicated"? Hardly. Crimes such as this should have a mandatory death sentence.

Posted by: federalist | Dec 1, 2013 1:02:01 PM

I wonder why this would even be a Federal case if it weren't for the death penalty. It seems odd that they would continue a federal prosecution to seek nothing more than what the citizens of Massachusetts would have allowed had this bombing not substantially affected interstate commerce.

Posted by: Erik M | Dec 1, 2013 4:32:37 PM

What purpose does LOWP serve is this case? He's 20 and so that means that he will be in prison for roughly sixty years. Optimistically, that is roughly six million dollars in today's money. There are lots of elementary schools that could use the labor of the teachers those six million dollars could buy.

I agree with the gentleman in the article. If not the death penalty here, where? I can't make any comment on the politics of the situation but I think it would be a travesty if this was settled by a plea agreement that gave LOWP.

Posted by: Daniel | Dec 1, 2013 8:23:19 PM

Federalist, you write that "Complicated"? Hardly. Crimes such as this should have a mandatory death sentence." Perhaps so, but but the Supreme Court has forbidden mandatory death sentences. (I forget the name of the case).

Posted by: anon | Dec 1, 2013 8:29:56 PM

-- From the article: "Richard Dieter, executive director of the Death Penalty Information Center, which advocates against the death penalty, said possible considerations that could work in Tsarnaev's favor are his relative youth and whether Tsarnaev's older brother, Tamerlan Tsarnaev, may have pushed him to take part in bombings...."

Um, yeah. I think that when you're 20, and your older brother "pushes" you to kill people who have done you (and him) no harm, the answer is, "You're out of your mind. Forget it."

-- from Erik M.: "I wonder why this would even be a Federal case if it weren't for the death penalty."

Because the defendant violated quite a few federal statutes.

-- from Daniel: "He's 20 and so that means that he will be in prison for roughly sixty years. Optimistically, that is roughly six million dollars in today's money. There are lots of elementary schools that could use the labor of the teachers those six million dollars could buy."

Bingo.

-- from Doug: "I would be very surprised if AG Holder does not approve seeking the death penalty in this case, and I will be similarly surprised if the case is not ultimately resolved through a plea deal providing for an LWOP sentence."

Even the present DOJ is not craven enough to go for less than the maximum penalty here. But if perchance they do, I'll bet you $100 here and now that it's not done until after the 2016 elections. The Democrats are going to have enough trouble with Obamacare; they don't need caving in to a bloody Jihadist to go on top of it.

Posted by: Bill Otis | Dec 1, 2013 9:56:38 PM

I proposed trading New England to Canada, where they would be happier. In return, Canada gives us the Western Provinces, and they would be happier in the USA. Get rid of Harvard, Yale, and the rest of the supercilious buffoons, their toxic law schools.

If kept alive, the terrorist will become a martyr, get a license to kill in prison, and have a platform for interviews to maintain his celebrity status.

One of the terrorists in the 1993 World Trade Center bombing stabbed a guard in the ye with a pencil. The blind Sheikh remains the subject of frequent negotiations to free him.

Posted by: Supremacy Claus | Dec 1, 2013 10:29:16 PM

Bill Otis, you write: "Um, yeah. I think that when you're 20, and your older brother "pushes" you to kill people who have done you (and him) no harm, the answer is, "You're out of your mind. Forget it."

Bill, one of the 12 penalty phase jurors may disagree with you, and that's all i takes for no death penalty. That's why we have 12 citizens on the jury, not 12 former prosecutors.

Posted by: anon | Dec 2, 2013 9:46:33 AM

anon --

I don't recall claiming that it could not be the case that one juror would disagree with me. Where did I say that?

But let me ask: Do YOU disagree? That is, do you disagree that when a 20 old man of sound mind is approached by his older brother with an idea to blow up however many people happen to be standing there when the bomb goes off, even though those people are total strangers who're doing nothing more offensive than watching a race, the younger brother has any response OTHER THAN, "You're out of your mind. Forget it."

Or are you so enamored of Dzokhar that you're rooting for him to draw a juror so indulgent of evil that he thinks an acceptable response to the older brother would be, "Oh, OK, sounds good. Whatever. Stuff happens."

Is that the morality you want to find in jurors?

Posted by: Bill Otis | Dec 2, 2013 10:59:44 AM

"Or are you so enamored of Dzokhar that you're rooting for him to draw a juror so indulgent of evil that he thinks an acceptable response to the older brother would be, "Oh, OK, sounds good. Whatever. Stuff happens."

Is that the morality you want to find in jurors?"

So a juror who is for a life sentence but not the death penalt is indulgent of evil and has questionable morality? And you wonder why this country is so polarized.

Posted by: Jay | Dec 2, 2013 12:46:10 PM

Bill Otis, you wrote: "Because the defendant violated quite a few federal statutes."

He also violated quite a few Massachusetts statutes. Why isn't he being prosecuted at the state level? If your response is that he should be prosecuted anywhere charges could be brought (or, at a minimum, that he should be prosecuted in both locations), I'll refer you to your favorable quoting of Daniel about unnecessary costs, which you seemed to approve of. It makes no sense to me to spend the money of a second trial to get two LWOP convictions as opposed to one.

If his homicides hadn't substantially affected interstate commerce, this would be a state homicide case. Now the federal system has the death penalty, so, if they were seeking it, that would be a logical distinction. Otherwise, it doesn't make sense to me.

Posted by: Erik M | Dec 2, 2013 3:42:33 PM

Jay --

Out of pure hate, Dzokhar blew up an eight year-old boy he had never met and who had done him no harm. The kid was going to start little league, for the first time, in three weeks. His death was brought about by being ripped to bits by nails and shrapnel Dzokhar lovingly packed into a homemade bomb. Two other people, adults, were also killed at the site.

The kid's mother and seven year-old sister did not attend his funeral the next week. The reason they didn't is not that they were mad at him. The reason is that they were so severely wounded they couldn't. The doctors were still pulling nails out of them.

You whistle past all that as if it does not exist, finding problems only with me. In particular, you ask, "So a juror who is for a life sentence but not the death penalt[y] is indulgent of evil and has questionable morality?"

The answer to your question is yes. Dzokhar has earned execution, and to refuse to provide that which has been earned is immoral, you bet.

You also say, "And you wonder why this country is so polarized."

Actually, I have never wondered why the country is so polarized. Why do you think I do? I already know why it's polarized: Because minorities of it citizens take Dzokhar's side (he has websites devoted to him, no kidding); support legalization of heroin, meth and PCP (talk to a hard core libertarian); and think the United States stinks to high heaven because it's a racist cauldron (Jeremiah Wright, Louis Farrakhan, Van Jones, lots of others).

So yes, it's polarized. If you're waiting for me to swallow what these people want to push down my throat -- to lessen the "polarization" -- you'll be waiting a long time.

Now let me ask you: Do YOU buy what they're selling? If not, aren't you too contributing to "polarization"?

Posted by: Bill Otis | Dec 2, 2013 4:22:31 PM

Erik M --

You asked why Dzokhar is being prosecuted by the feds. I responded that it's because he broke quite a few federal statutes.

You don't dispute that, but now pivot to the question of why he isn't being prosecuted by Massachusetts.

First, I don't know that he won't be. Second, it's no particular business of mine what Massachusetts prosecutes, since I am not a resident of that state. Third, I am a resident of the United States, and I am more than satisfied to see my tax dollars spent in this federal prosecution, since, for the reasons I just outlined to Jay, Dzokhar has earned a death sentence and the feds are the only ones who can give it to him.

Posted by: Bill Otis | Dec 2, 2013 4:30:04 PM

The death penalty is most often justified as reflecting the moral views of the citizens who implement it (it certainly is difficult to justify on purely utilitarian grounds). Because of that, our society has long used jurors to reach this decision and, when they didn't formally allow a juror role, at least tacitly acknowledged that this was the practice. Even in places that had mandatory death sentences, this would be seen as the legislature speaking for the community in making this decision. However, I can't think of anyone since James Fitzjames Stephen who seemed to think it desirable to substitute the moral judgment of the community in favor of LWOP and replace it with death.

Posted by: Erik M | Dec 2, 2013 4:40:12 PM

Erik M --

If the sense of a federal jury drawn from in and around Boston is that Dzokhar should get LWOP instead of the DP, I will disagree with that, but so what? I disagree with a lot of things.

But why shouldn't such a locally drawn jury AT LEAST HAVE THE CHANCE to consider the death penalty? If it indeed offends the conscience of the community, they can always reject it. But they shouldn't even have the chance to consider it???

Posted by: Bill Otis | Dec 2, 2013 7:32:42 PM

How interesting that some are so insistent on local control in a DP case in a non-DP state but are so quick to turn to the Feds when a "hate" crime or Zimmerman case is the subject of discussion.

Funny how that works...

Posted by: TarlsQtr | Dec 2, 2013 9:17:32 PM

TarlsQtr --

Don't you know it's impermissible to mention hypocrisy when it's liberals who practice it?

Oh, and have you seen Jay, the commenter who had a lot of worry that the country was polarized, but no worry visible in his post that an eight year-old got blown to shreds by poor, dear Dzokhar? I responded to his comment, but he seems to have lost interest.

Posted by: Bill Otis | Dec 2, 2013 10:54:21 PM

Bill Otis, I didn't pivot. The two points were always tied together. I initially said that it didn't make sense to prosecute federally unless there was the death penalty. My justification is mostly on federalist grounds - this is essentially a state homicide charge that's being masked as a commerce regulation. However, it's also a belief that the Commonwealth of Massachusetts chose to end the death penalty and the federal government stepping in is a way to avoid what the state chose to do. It's trying to allow the passions of the day to trump the reasoned judgment that led to abolishing the death penalty. But that passion at least is understandable. I can see wanting to make an exception to a categorical rule when enforcing that rule becomes hard to stomach. Once you remove that, you're left with doing exactly what could be done on the state level but a more tenuous tie to jurisdiction.

A few side points. First, not every case that could be a federal case is prosecuted. The hate crime example is one. Another is pretty much every drug case imaginable. "Because federal law was violated" is hardly a sufficient justification without more. Second, I do find it hard to believe that you don't have an opinion on whether Massachusetts should prosecute, but I'll let that go.

TarlsQtr, I don't believe Zimmerman should be prosecuted federally. First off, I don't think the Petite Policy has been satisfied (I don't think it was jury nullification, just a decision to find reasonable doubt in a situation where reasonable minds may differ). Second, I think hate crime legislation is most justifiable when there is a state that refuses to adequately prosecute due to indifference or animus based on the class of the victim. That wasn't the case here. Whatever initial appearances of bias that existed, it was cleared up when the case was prosecuted. The day in court was sufficient. Third, I don't really accept that the Separate Sovereigns doctrine can be supported by history, although the fact that incorporation was so late makes it hard to tell for sure. I also don't think Zimmerman was guilty, so that colors my views a bit, but I probably would reach the same conclusions either way.

This site really needs a quote function, btw.

Posted by: Erik M | Dec 3, 2013 7:56:30 AM

Can the State or United States not kill a bombing by bombing him? There is nothing in the Constitution which dictates the method of killing a killer. Why not the same method used by the killer. I think we should dispense with phony terms like "execute" and dispense with weeny methods for killing kilers, like drugs. Here is another suggestion. Why not a firing squad with tasers? We could have an electrocution and a firing squad in one killing. The crowd could yell: Turn up the juice, Bruce!

Posted by: Liberty1st | Dec 3, 2013 7:43:48 PM

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