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Holder to decide soon whether to seek death penalty for Boston bomber

  • Article by: Katharine Q. Seelye
  • New York Times
  • January 23, 2014 - 9:18 PM

– In the quarter-century since the federal death penalty was reinstated, in 1988, attorneys general have authorized it for about 500 defendants. Attorney General Eric Holder will soon decide if he will seek the death penalty for Dzhokhar Tsarnaev, who awaits trial in last year’s Boston Marathon bombings.

Even if the government pursues the death penalty, it is far from certain that it will be carried out in this case. Since its reinstatement, only three people have been executed, the last one a decade ago, according to the Federal Death Penalty Resource Counsel.

Holder must decide whether the aggravating factors that might justify death, like the indiscriminate killing and maiming of innocent people, outweigh 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 that he does not personally support the death penalty, he has authorized its use several times, and many legal experts expect that he will do so again in this case.

How the process works

A decision to pursue the death penalty begins with a recommendation to the attorney general from the relevant U.S. attorney — in this case, Carmen Ortiz, whose team is prosecuting Tsarnaev for the bombings on April 15 that killed three people near the marathon’s finish line and injured more than 260 others.

A police officer was also killed in a subsequent manhunt for Tsarnaev and his older brother, Tamerlan. Tamerlan was killed after a shootout with police; Dzhokhar was caught later hiding inside a boat.

In June, a federal grand jury returned a 30-count indictment against Dzhokhar, including 17 charges that could carry the death penalty.

He has pleaded not guilty and is in federal custody. No trial date has been set.

The death penalty has not been used in Massachusetts since 1947, and the state banned it in 1984. But since Tsarnaev is charged under federal law, the federal death penalty applies.

Victims’ views are relevant

As part of her decisionmaking process on whether to recommend the death penalty, Ortiz surveyed the families of those killed and surviving victims. The responses were confidential, as was Ortiz’s recommendation to Holder.

“If you don’t authorize it in the case of a terrorist bombing attack, when would you ever authorize it?” asked David Ruhnke, a defense lawyer and death penalty opponent.

The factors that Holder is to consider, according to Justice Department protocols, include the strength of the evidence, the role the defendant played, prior criminal record, whether the defendant has accepted responsibility, and the views of victims’ families.

If the death penalty is authorized for Tsarnaev, the first hurdle would be to find a jury willing to use it. Anyone opposed to it would be disqualified.

With disclosures of wrongful convictions and racial disparities, the political climate for capital punishment has grown less hospitable, and federal juries have been more inclined to sentence convicts to life without parole. Since 2000, the research counsel said, juries have favored life over death by a ratio of 2-to-1.

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