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January 24, 2014

How could AG Eric Holder justify refusing to authorize the death penalty process for Boston Marathon bomber, Dzhokhar Tsarnaev?

The question in the title of this post is my reaction to this new New York Times article headlined "U.S. Weighs Pursuit of Death Penalty for Suspect in Boston Bombing."  I really mean this question to be more of a friendly suggestion and challenge to readers who are strongly opposed to the death penalty in all cases, in part because I suspect AG Holder would have a hard time developing a sound (and politically effective) public justification for not starting the federal death penalty process.  So, abolitionists, use the comments to ghost write a speech for AG Holder to justify not authorizing a capital prosecution in this case.  Here is the start of the NY Times article to provide for all the essential background for this question and challenge:  

Since the federal death penalty was reinstated, in 1988, attorneys general have authorized it for about 500 defendants. 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 Jan. 31 whether to pursue the death penalty, but even if he does so, it is far from certain that Mr. Tsarnaev would actually face execution.  Of those 500 defendants, only three have been executed, the last one a decade ago, according to the Federal Death Penalty Resource Counsel.

Still, Mr. Holder’s job is not to weigh the probabilities of Mr. Tsarnaev’s execution. Instead, he must decide whether the aggravating factors that might justify death in this case, like the indiscriminate killing and maiming of innocent people, outweigh any mitigating factors, such as the possibility that Mr. Tsarnaev, who was 19 at the time, was under the sway of his older brother.  

While Mr. Holder has said he does not personally support the death penalty, he has authorized its use several times, and many legal experts expect he will do so again in this case.

Some prior related posts:

January 24, 2014 at 11:51 AM | Permalink


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I voiced my opposition to it as a constitutional matter, but one viewpoint expressed by a professor (sorry, I keep forgetting his name) is that federalism would warrant it -- if the crime took place in a non-death penalty state, the federal government at least as matter of policy should respect the choice of the people there.

The countervailing interest there is if the nation has an interest pursuant to some enumerated power or the like that the people of the nation via Congress chose to defend with the death penalty. I think the crime here including its affect on interstate commerce is such an example. But, it is a debatable one. A federalist (speaking generally here, not the person who posts here) very well can determine that this should be a state crime. Or, at least, the state choice as to execution should be granted here.

I honestly find that somewhat weak [though how to balance close cases is tricky] especially if the feds are going to take the case. At best, seems like a toss-in argument. Anyway, the feds don't appear to accept the logic of the professor anyhow. And, the nation probably won't buy it either -- if the feds think the crime is too local, they shouldn't have taken the case. And, anyway, it isn't some simple domestic matter akin to the Bond case. Weak tea.

The age of the defendant is probably a good thing to choose here. As noted in one sentencing case that some here probably knows the name of, age as a sentencing matter is not just a matter of some fixed line at 18. Maturity and other factors can be involved. If he was pressured by his brother and can be shown to be somewhat immature, life imprisonment or some similar long sentence might be appropriate over the death sentence. One commentator seemed to think this was perhaps the best thing for the defense to use:


The involvement of another country, if it factors in, might also be a concern here. International opinion is against the death penalty generally. Not sentencing him to die, especially if some other issue can be cited like maturity, could ease the way in future cases that might involve international assistance that would otherwise be tempered by that nation's opposition to the death penalty. The person's age here can be cited by such nations as a mitigating factor to further their intransigence.

The biggest reason to not seek the death penalty is if there is any suggestion the person will plea. A death penalty charge now could very well encourage such a plea especially since the evidence seems stacked against the person. If the government says they will seek death, the defense have a much greater reason to go all out. But, this reason in some part involves the assistance of the defense to suggest some willingness to deal if the death penalty is off the table. This seems possible but I don't know what their mind-set is.

A decision to seek the death penalty here seems likely to me; the case is complicated and other than seeking defense cooperation/deal, the time taken is more likely to dot all the Is cross all the Ts. But, the various factors above would be what I would counsel (thankfully for them, they have better counsel). Concern for the victims won't help them though probably the defense can find some "abolitionists" among them. Future dangerousness might a bit, I guess, if it is shown that his brother was a major factor. Willingness to repent? Not likely a good sell to the public given the nature of the crimes.

Anyway, you know, fwiw.

Posted by: Joe | Jan 24, 2014 1:03:25 PM

ETA: I assume the question cannot really be answered by stating that the death penalty is never appropriate given the feds have sought out the death penalty under Obama in certain cases.

The statement can include a remark that life imprisonment is appropriate for all the purposes of punishment and there just is no total justice available here -- even killing him is not truly a match to the harm he did.

Also, one last concern that seems appropriate in such cases is to avoid a sort of martyrdom. That is a fear in cases particularly with ideological connotations -- which appears to be part of the motivations here -- that executing someone will make the person a type of martyr or lead to more violence as a sort of "life for life" twisted mentality.

Since the Administration, I assume, would want to leave open the death penalty in other cases, this would not be a stand alone argument, but it could factor into the statement. It also would be for an "abolitionist" a concern when opposing the death penalty in this context as compared to some thrill killing or whatever, where that would not arise.

Posted by: Joe | Jan 24, 2014 1:24:44 PM


Because he's a progressive liberal, which by definition allows great subjectivity in how the accused will be prosecuted. For instance, there is only one accused person being indicted for a hate crime in the hundreds of "knockout" cases across the country...the ONLY instance in all the cases of a white attacking a black person.

To that end, I have no doubt that if the bomber had been a white supremacist / Tea Party voter, the DP would have been on the table.

Posted by: Eric Knight | Jan 24, 2014 2:39:24 PM

There being no principled basis for not seeking the DP here (this is about as "un-localized" a crime as you can get -- it made headlines worldwide), let me suggest a statement for the AG that would reflect the true basis of any decision against the DP he might make:

"I have decided that the government will not seek the death penalty against Mr. Tsarnaev. I personally dislike the death penalty, and I have a lot of power. In addition, the ideologically-based constituent groups that contribute to my party also dislike the death penalty (not to mention the United States, but we won't get into that). Therefore, I will no more pursue capital punishment here than I will pursue an investigation of IRS targeting of conservative groups.

"We wish Mr. Tsarnaev all the best as he asserts his constitutional rights against the (as ever) Brady-hiding line prosecutors. If, however, he is convicted, the Department will be recommending six months' confinement to be followed by one year of anger management. Redemption, restorative justice, and second chances, dontcha know.

"Any questions?"

Posted by: Bill Otis | Jan 24, 2014 2:50:36 PM

Be careful Mr. Knight . . . . Doug might get mad at you for being off-topic.

Posted by: federalist | Jan 24, 2014 10:05:58 PM

There is a lively death penalty, with 15,000 extra-judicial executions a year. About 10% should be of black victims, instead there are an extra 5000 murder of black productive males. There are 100,000 unresolved missing person reports. So the real number may be much higher. These condemned generate no lawyer fees. They may rot.

The Boston bomber will generate massive lawyer fees. This precious commodity will be protected to the bitter end by the lawyer traitor.

Come the next major terror attack, such as a nuclear bomb in a major city, all scores will settled with the lawyer traitor elite. As they show no mercy to murder victims, and continue to protect the murderer, to generate $billions in lawyer fees, so will they deserve none themselves.

Posted by: Supremacy Claus | Jan 25, 2014 2:40:48 AM

Eric Knight: Do you think only "progressive liberals" believe in great subjectivity in how an accused will be prosecuted? I am pretty sure that Bill Otis is not a "progressive liberal," and yet he often asserts that there can and should be no formal legal regulation or court review of just when and how individual federal prosecutors decide to offenders. (Indeed, Bill seems to believe that the Framers of the US Constitution enshrined this great subjectivity in how an accused will be prosecuted in the federal system into our fundamental constitutional structure --- although I suppose you and Bill and perhaps others might be inclined to assail the Framers for being a bunch of "progressive liberals.")

Unlike federalist wrongly believe, I do not get mad when folks bring up other matters, rather I try to understand what they are getting at. Your comment suggests to me you think, using the knockout game example, that DOJ may sometimes (often?) badly abuse its "great subjectivity in how the accused will be prosecuted." I agree 100%, and that is one main reason I generally oppose federal mandatory minimum sentencing provisions: they exacerbate the problems that arise if/when federal prosecutors abuse their charging powers within a system that has no formal rule of law or checks and balances for the exercise of this big-government federal prosecutorial power.

Interestingly, though, as this post is meant to highlight: (1) in all capital cases, where it is unconstitutional to have a mandatory death penalty system, any decision by AG Holder here to pursue the death penalty is NOT a one-way ratchet toward severity (as it is when mandatory minimum is in play for low-level crimes), rather it is just a way to allow another more representative body (a jury) make a key discretionary sentencing decision after a open-court proceeding, and (2) in this high-profile case, how a federal prosecutor plan to exercise his "great subjectivity in how the accused will be prosecuted" is subject to considerable public scrutiny and appropriate political and legal process considerations.

For these reasons, I do not worry so much about the great subjectivity in how the accused will be prosecuted in capital cases, especially high-profile capital cases. But I worry greatly about how this great subjectivity in how the accused will be prosecuted is used and abused in the tens of thousands of low-level drug and CP cases involving severe mandatory minimum sentencing terms lacking any formal rule of law or checks and balances concerning the exercise of big-government federal prosecutorial power.

So, again, Eric Knight, I am not at all mad, but instead very interested in how you (and federalist and Bill Otis and others) would respond to my reaction to your comment and knockout reference: Do you understand and share my concerns that your concerns about "great subjectivity in how the accused will be prosecuted" provide a very strong reason to be opposed to any and all federal mandatory minimum sentencing provisions (especially in low-level, low-profile cases)?

Posted by: Doug B. | Jan 25, 2014 8:39:43 AM

He did the deed on our American soil. Does his home country provide for the death penalty for these crimes. If so then there is no need to query how this will fly back home in ByLow Russia or where he is from. Did he kill someone and intend to do it? How many did he kill? Was he sane? If he intended to kill more than one person and was sane then ask the jury and court to decide upon the penalty and ask for death.

Posted by: Liberty1st | Jan 25, 2014 10:52:20 AM

It is my understanding that the death penalty has been suspended in Russia since the 1990s though it is technically still on the books. Per Wikipedia:

"Capital punishment in Russia has been indefinitely suspended,[1] although it is theoretically allowed, with the only legal method being shooting. There exists both an implicit moratorium established by the President Yeltsin in 1996, and an explicit one, established by the Constitutional Court of Russia in 1999 and which was most recently reaffirmed in 2009. Russia has not executed anyone since 1996, and the regulations of the Council of Europe prohibit it from doing so at any time in the future. However, the death penalty still remains codified."

The article also notes that the public at large there supports the death penalty, but democratic control is not to my understanding currently dominant there in various respects. So, given the "official" policy is abolition, that would be a major concern when dealing with international relations on this topic. BTW, as to the hate crime deal, how does the federal prosecution against the Amish offender factor in there?

Posted by: Joe | Jan 25, 2014 12:09:35 PM

Doug. the title of your post suggests that Holder would care about justifying anything. This is a guy who got Marc Rich pardoned.

Posted by: federalist | Jan 25, 2014 1:08:09 PM

Doug --

"I am pretty sure that Bill Otis is not a 'progressive liberal,' and yet he often asserts that there can and should be no formal legal regulation or court review of just when and how individual federal prosecutors decide to offenders."

I assert that the decision whether and what to charge is given by the Constitution to the discretion of the executive branch alone. You have not contradicted that, and, with all respect, can't.

If either of us is making outlandish assertions, it is, I believe, you. You have said that, when a mandatory minimum is in play, a prosecutor's subjective decision to charge the higher offense, EVEN WHEN THE PROSECUTOR IS CHARGING ONLY ACTS THE DEFENDANT INTENTIONALLY UNDERTOOK, is "prosecutorial abuse."

There are many things that constitute prosecutorial abuse. Charging the defendant with what he actually did cannot possibly be one of them. This is true regardless of the fact that more lenient charges may also be available (which there almost always are).

The anti-mandatory minimum side is simply furious that the defendant lost in Bordenkircher v. Hayes, the case it refuses even to mention, much less discuss. Perhaps that is because its decisive vote was cast by liberal hero, Justice John Paul Stevens.

In any event, I suspect that the motivating reason you want the judicial branch rather than the executive branch to control charging decisions (which is what judicial review will do, as you know) is that you want those decisions thrust into the hands of lawless, pro-defendant ideologues like Jack Weinstein and Mark Bennett, who will give exactly what this blog principally campaigns for: Lower sentences.

Is that not correct?

Posted by: Bill Otis | Jan 25, 2014 10:34:51 PM

Bill, that is not correct, because I favor the rule of law, not the rule of prosecutors. Also, I do not want to give judges charging power, rather I want judges to not have sentencing power eliminated by lawless prosecutors using mandatory minimums to serve any purpose or no purpose.

When you call judges lawless, you are describing you opinion on how they apply the law. In contrast, when I call federal prosecutors lawless I am describing the fact they are not subject to law.

Again, I am not advocating for judges to charge, rather I am advocating for prosecutors to control sentencing. That is what MMs allow them to do.

You are right that I think lots of prison sentences in the federal system are too long. But I want prosecutors to make the capital charging decision here followed by a jury getting to make a sentencing decision. Similarly, I was grumpy federal prosecutors were too lenient on Judge Camp and numerous other rich and powerful defendants subject to what I perceived as too lenient charging that limited judges from exercising fitting sentencing power.

I know you like to think this is all about outcomes --- in part because I think that is the only way to justify all the ugly procedures that MMs produce ranging from the sever trial penalty to sentencing based on acquitted conduct before Alleyne to lots of prosecutor created disparity. But for me it is about the rule of law and real checks and balances. The judges you hate are formally subject to the rule of law and real checks and balances, but federal prosecutors are not. (And, of course, the judges were all nominated by a Prez and confirmed by a Senate. That is not true for most federal prosecutors.)

In any event, I still seek an answer to my question: aren't the concerns articulated by Eric and echoed by federalist and you a strong argument against giving prosecutors lawless sentencing power through mandatory minimums?

Posted by: Doug B. | Jan 25, 2014 10:57:46 PM

Doug --

1. And STILL you will not discuss or even mention Bordenkircher v. Hayes.

2. If as you say, you favor the rule of law, then perforce you favor leaving charging decisions to the discretion of the executive branch, which (as again you do not deny) the supreme law in this country, the Constitution, puts it.

3. Just so I'll be clear, am I correct in believing that you view it as prosecutorial abuse for the prosecutor to charge what the defendant actually did?

If you do believe that, I respectfully submit you have forfeited a claim to seriousness on this issue. If you don't believe it, then there is no occasion for judicial review (not to mention that there is no constitutional basis for it).

4. It is absolutely incorrect that the prosecutor alone controls sentencing by charging a mandatory minimum. First and obviously, he "controls" only the minimum sentence; it just never seems to occur to defense-oriented types that a criminal might deserve more than that, where the judge retains complete discretion.

Second, the defendant ab initio controls his prospective sentence by controlling his behavior. That he refuses to do so and assumes the risk is not the prosecutor's fault.

Third, any judge who thinks he can make the case is free to determine that the MM sentence is a violation of the Constitution, which is exactly what Weinstein did. Only his 401 page ruling was so fatuous and extreme that it brought only a unanimous scolding by his superiors -- who HAD TO RELY ON THE MANDATORY MINIMUM TO CONSTRAIN WEINSTEIN ON REMAND. But it is exactly that restraint you would undo, not because it is unjust, but simply because you regard prosecutors as Satan.

Fourth, there are numerous mechanisms for a defendant to escape the MM, starting with plea bargaining (the overwhelming choice) to the safety valve to Presidential clemency.

Other than that, though, you're spot on.

Dinner time for now.

Posted by: Bill Otis | Jan 25, 2014 11:40:56 PM

Hope you dinner was yummy, Bill, and that you are ready to go back at it, because once again you return to comments about the Constitution and what defendants have done when I want to talk about what makes for sound sentencing policy. So, let me try to highlight our points of agreement and disagreement.

1. I concur the Constitution places charging power in the hands of prosecutors and that SCOTUS has approved against a constitutional attack the lawfulness of prosecutor using their unregulated powers to threaten/bully defendants into pleading guilty based on the threat of increased charges if they do not (that the holding of Bordenkircher). Please stop feeling a need to note all this because I am NOT assailing these settled constitutional realities when I assail federal MMs as bad sentencing policy. Rather, as you should understand by now, it is because of these constitutional realities that federal MMs are so pernicious as a matter of sentencing policy. If federal prosecutorial charging and bargaining decisions were not so lawless --- i.e., if they were subject to some congressional limits and/or some light judicial due process review as is judicial sentencing power --- then federal MMs would not bother me so much because there could be some law and/or greater transparency impacting when and how federal prosecutors make sentencing decisions.

In sum, please, please try to understand that the very constitutional realities you so often stress in this context, Bill, practically heightens rather than undermines the need for federal MM reform as a matter of sound sentencing policy.

2. I think it is possible for government officials to "abuse" their lawful powers. I assume it was lawful for IRS agents to focus on tea party groups, but I consider targeted audits of unpopular groups to be an abuse of power. Similarly, I suspect you would consider it an "abuse" of lawful power for AG Holder to decide to just dismiss the charges against Tsarnaev without explanation just because he felt like it (as I would). Or, to use federalist's helpful reference, I assume he believes (as do I) that the Marc Rich pardon was an abuse of lawful power by Holder and Prez Clinton.

That said, if you want to focus on semantics, I can try to remember to utilize only "misuse" as a term for what I consider poor/harmful use of lawful prosecutorial power. I will try to utilize that word instead of abuse because of your apparent belief it is impossible for prosecutors to abuse their lawful powers, though I think my use of the word abuse in this context is a bit more in keeping with common usage.

In sum, please know Bill that I can see the basis for your perspective that the executive kings who make prosecutorial decisions can do no wrong when using their lawful powers because the king can never be wrong. But I think it fair to express concerns about the king misusing lawful powers AND again realize that MMs operate to give the prosecutor kings more lawful power to control sentencing outcomes. That is, MMs heighten the risk of bad sentencing outcomes when federal prosecutors misuse their lawful powers.

3. Bill, you are right that MMs only control minimums, but practically these MMs are set so high in some cases, controlling the MMs involves controlling all of sentencing. Sometimes the MM is LWOP, so the sentence is fully controlled. In other cases, stacking MMs place the required sentence for a low-level pot dealer with guns around at 80 years (Chris Williams) or 55 yeas (Weldon Angelos). And the decision to file or not file an 851 involves deciding to double an already lengthy MM in many cases.

I am not saying the unregulated and lawless power to control sentencing is more the "prosecutor's fault" than the defendant. But it is silly and telling to keep returning to what the defendant did when we are discussing sound sentencing policies and practices: by definition, if a defendant has committed a crime for which he is to be sentenced, he is most at fault. (Of course, as your mention of pleas to avoid MMs reveals, in some cases the defendant is truly innocent or at least thinks he is, and yet the looming threat of MMs require him to lie and plead guilty to avoid the harmful sentencing consequences of our system in which severe federal MMs can and regularly do punish the decision to test the government's proof at trial with an extra 10 years in prison!)

4. That you keep asserting that I must view prosecutors as Satan provides a telling window into your biased perspective on my simple desire to have all sentencing decisions subject to the rule of law and checks and balances. In your Wizard of Prosecutors mind, the only reason I could want prosecutors subject to the same sentencing structures as judges is because I must view them Satan. No, it is because I view the rule of law and checks and balances to be so important in our system that I want even the angels who run our government and prosecute criminals to be subject to them.

In contrast, Bill, you resist prosecutors being same sentencing structures as judges apparently based in the view that all federal prosecutors are angels (including AG Holder), along with the apparent added belief that these (Holder-led) federal angels cannot be as wonderful for America if they have to be subject to the rule of law or checks and balances when making sentencing decisions.

Your view, Bill, that all prosecutors are angels who cannot be bother with the rules all other sentencing actors face is a fine perspective on the virtues of benevolent despotism of (Holder-led) federal prosecutors, but it is not one I share. And the fact that Eric and federalist are eager to complain about Holder in this thread reinforces my view that it is not one many people share on either side of the aisle or the courtroom EXCEPT for those like you who apparently love and trust prosecutors having unregulated sentencing powers unlike anyone else in our legal and political system.

Posted by: Doug B. | Jan 26, 2014 7:15:48 AM

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