Death Penalty Decision Approaches in Marathon Bombing Case [UPDATED]

The answer to whether or not officials will call for capital punishment for Dzhokhar Tsarnaev is due by the end of the week.

UPDATE, January 30, 3 p.m.: Officials from the United State Attorney’s Office in Massachusetts announced on Thursday—one day ahead of the official deadline—that they would seek the death penalty in the case against Boston Marathon bombing suspect Dzhokhar Tsarnaev.


The deadline for federal officials to decide if they will pursue the death penalty for Boston Marathon bombing suspect Dzhokhar Tsarnaev is due by Friday, January 31, and according to experts, it’s possible that prosecutors will call for capital punishment.

“There’s no real way of predicting the outcome because there’s never been a case like this,” said Harvard Law School Professor Alan Dershowitz. “But I think it’s very possible that they will ask for the death penalty. I don’t know how [the decision] will come out, but it’s possible because the public demands it.”

The decision lies in the hands of Attorney General Eric Holder, who told the Senate Judiciary Committee on Wednesday, in Washington, D.C., that he would meet the Friday deadline. Holder has approved pursuing capital punishment in 34 cases nationwide during his career, even though he personally is against the measure.

Following his decision, a jury would have to be selected in the case against Tsarnaev, and would be tasked with ultimately deciding his fate if he’s found guilty. “Prosecutors don’t get to kill people, juries have to. So one of the things the Justice Department will say is, ‘we are leaving it in the hands of the community,’ and that the jury is going to make the ultimate decision,” according to David Rossman, a law professor at Boston University. “It’s a shared responsibility. It’s not Eric Holder that holds the switch.”

Rossman said Holder’s decision will depend on factors such as Tsarnaev’s age and whether or not he was under heavy influence of his older brother, Tamerlan, who was killed in the days following the bombings. “There are mitigating factors that come into play for this type of conviction,” he said.

Although Massachusetts did away with capital punishment in 1984, prosecutors can still seek the death penalty under special circumstances regarding federal cases like Tsarnaev’s through the Federal Death Penalty Act.

In June, Tsarnaev was indicted by a Grand Jury on 30 charges stemming from the April 15, 2013, attack on Boylston Street, including conspiracy to use a weapon of mass destruction, and using a weapon of mass destruction resulting in death. Seventeen of those charges are punishable by death, if convicted, according to federal prosecutors handling the case.

Although Dershowitz believes there’s no one more deserving of the harshest punishment allowed under the law, and he believes it’s possible officials will pursue it, he doesn’t think Holder and U.S. Attorney for Massachusetts Carmen Ortiz should push for the option. “If he doesn’t get the death penalty then no one should,” said Dershowitz. “But I don’t think he should because I’m opposed to capital punishment under all circumstances.”

Dershowitz said if President Barack Obama were to ask for his advice about the matter, he would say not to go through with the death penalty because it would only “glorify” Tsarnaev and bring additional attention to an already very public case.

“It will draw more attention to him. He’s a young kid, and people will identify with him because of that. It’ll be in the media far more dramatically if he gets the penalty than if he doesn’t, and that’s a good argument for not giving him the death penalty,” he said. “This was a crime so heinous that he doesn’t deserve the quick and painless death brought on by the death penalty. He deserves to spend the rest of his life in a prison cell.”

Dershowitz said in a sense, Tsarnaev would become a “martyr” for people against capital punishment, as well as Muslim extremists, where those who seek “paradise” through suicide bombings and other acts of terror would view him as a hero for allegedly carrying out the Marathon attack. “He would become both a religious martyr, and a civil rights martyr,” he said.

Both Dershowitz and Rossman are among many lawyers and anti-capital punishment advocates that oppose the measure, even for the most extreme cases like that of Tsarnaev’s.

The Boston Bar Association took a strong stance against the death penalty on a federal level in a new report released by one of its working groups in early January. The report urged prosecutors, and the general public, to recognize that capital punishment is “fraught with peril,” and cited the costs associated with carrying it out.

With the deadline looming, Dershowitz sided with the opinion in some respects, and said it’s better to seek a life sentence for this case. “He will live in obscurity in jail and no one will remember him, not in two or three years,” he said. “If he didn’t get it, everyone will simply say that he deserves to die, or worse. But it will show America as a stronger country if we don’t impose the death penalty.”