Death penalty for Boston bomber a complicated question

Kevin Johnson | USA TODAY

WASHINGTON — When gang members Richard Tipton, Cory Johnson and James Roane were sentenced to death in 1993 for their roles in multiple murders, they took their places on federal death row, where they have remained for two decades.

A series of appeals and a more recent challenge to the lethal injection protocol used in federal executions have helped prolonged their lives in a place where — despite its designation — executions are rarely carried out.

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.

Oklahoma City bomber Timothy McVeigh marked the first federal execution in nearly 40 years when he was put to death in 2001. But even the execution of McVeigh, whose conviction was swift and who had abandoned last-ditch appeals, was delayed when it was discovered that the government had failed to turn over documents to the bomber's defense attorneys.

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.

In most death penalty states, the decision to seek death is left solely to local district attorneys. In the federal system, meanwhile, those decisions are consolidated within the Justice Department and ultimately left to the attorney general.

"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. Tamerlan Tsarnaev was killed in a confrontation with police after the brothers were publicly identified as the bombing suspects by the FBI.

"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.''