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Death-Eligible Charges Filed Against Tsarnaev

DOJ has charged Dzhokhar Tsarnaev with using a weapon of mass destruction against persons and property at the Boston Marathon last Monday, resulting in death.  Three people, including an eight year-old boy, were killed.  In addition, injuries, some permanently disfiguring, were suffered by more than 200 people. The charge carries a potential death sentence.

The key word there is "potential."  Whether DOJ actually seeks capital punishment will depend in significant part on the recommendations of the US Attorney's Office and an internal review committee.  This could take months (and probably will).  The decision ultimately rests with Eric Holder, who is on record as personally opposing the death penalty. 

If the decision is made on the merits rather than personal ideology, however, it shouldn't take months and it shouldn't be that hard, either.  Mr. Tsarnaev is a poster boy for capital punishment: No sane doubt of guilt; a planned attack on innocents; unbelievable and deliberate sadism; child murder; cop murder (if you count the MIT officer); multiple murder; terrorist murder; no racial angle; no mental impairment.

Those are the facts indicated by every report I have seen. It's all aggravators and no mitigators. Unless Holder indulges his personal opposition to the death penalty  --  opposition his boss says he does not share  --  DOJ has an easy choice.


Well, the mitigators are that he's only 19 and he has no prior criminal record that we're currently aware of.

Plus, the defense will likely try to convince a jury that he was brainwashed into it by a beloved and hero-worshipped older brother (who is conveniently deceased and upon whom all the blame can be heaped). Moreover, it is worth recalling that a jury in none-too-liberal Chesapeake, Virginia bought similar arguments in declining to give a death sentence to Lee Malvo in his pre-Atkins Beltway-Sniper trial (Malvo was 17 at the time of the murders).

However, don't get me wrong. In my opinion, Tsarnaev has fully earned a death sentence. I just worry about jurors who lie during voir dire about their ability to keep an open mind on the death penalty. I fear they might end up hanging the jury. Apropos, if a federal jury is hung on a death sentence, does that mean a life sentence is automatically imposed, or is there the possibility of a second sentencing proceeding with a new jury?

I should know the answer to your last question, but I'm embarrassed to say I don't, at least not for sure. My instincts, and my vague recollection of some O'Connor opinion from about 25 years ago, tell me that, if the jury hangs on death, there is an automatic LWOP sentence. I'm also recalling that that is the way the federal death penalty statute works.

As to your first two paragraphs: Capital defense would like to arrange the world so that the sun's coming up in the east is a mitigator. I thus have no doubt that we're going to hear about his age, no prior record, and big brother.

What I probably should have said is that there is no factor that would mitigate a death sentence in the mind of a normal person, given the number and seriousness of the aggravators.

His age is prime-time-crime age, so I don't know that it mitigates much. He's bright (had a scholarship to college), and there is no evidence of immaturity that I'm aware of.

I personally do not count as "mitigating" the fact that he led a normal life beforehand. Big deal. By definition, "normal" is what you get most of the time.

As to big brother: I suspect you're on the money with that one. I think the whole defense pitch will be to pin it on him, and portray Mr. Nineteen Year Old as just a wide-eyed kid tagging along.

I doubt it will work (although, as you intimate, you can always get a juror with an IQ of 70). By the time you're 19 -- indeed by the time you're 9 -- you know full well that when your brother wants you to do something bad, you have to say no. Blowing up a bunch of innocent people is the definition of "something bad."

There's also this: It seems that the older brother was already dead or disabled when the younger took off in the SUV, exchanging gunfire with the cops. It might also be the case that he's the one who threw more pressure cooker bombs at them to avoid capture. If either of those things is true, it makes it seem less likely that the younger brother was just an appendage, rather than acting of his own free will.

yankalp ~

Under the Federal death penalty statute, if the jury hangs, it is automatically converted to LWOP. That is why the heads of the Aryan Brotherhood are currently serving LWOP at a Supermax in Colorado. The feds tried to go for the death penalty on them on one juror held out. That is also why Zacarias Moussaoui is serving LWOP.

However, that is not constitutionally required (or I guess I should say that the Supreme Court has never held that it is constitutionally required). In CA if the jury hangs in the penalty phase, we can re-try the penalty phase of a trial.

Thanks very much for your answers, Bill and da2b!

The question of mitigation is very much in the eye of the beholder, as this discussion proves. Under Lockett, a mitigating factor can be anything relating to the circumstances of the offense or the character of the offender which might call for a sentence of less than death. His youth may mitigate against the death penalty, since he's 19 and the minimum age for death-eligibility is 18 under Roper v. Simmons (2005). And he may well have acted "under the domination" of his elder brother, although willingly rather under duress or coercion -- the latter case a subset of the former. The Florida Supreme Court's language in what may be the first major post-Furman death penalty decision, State v. Dixon (1973), says that execution should be reserved for "the most aggravated and unmitigated" of capital offenses. From a proportionality standpoint, Dzhokhar Tsarnaev seems comparable to Ted Kaczinsky, who got life without parole. And we don't yet really know about Tsarnaev's full life history or psychological picture: I'd say that mitigating factors range beyond legal insanity or categorical exclusions as the Solar System ranges beyond the Sun itself, maybe halfway to the next nearest star! This crime, like Kaczinsky's, involved the killing and maiming of many innocents, and if Tsarnaev is convicted, merits the ultimate legitimate punishment of life without parole.

"From a proportionality standpoint, Dzhokhar Tsarnaev seems comparable to Ted Kaczinsky, who got life without parole."

They made a deal with Kaczinsky because he had a plausible defense that he was insane. Dzhokhar has no insanity defense whatever.

"And we don't yet really know about Tsarnaev's full life history or psychological picture."

We know some things, and not one of them suggests any kind of mental or emotional handicap. The city even gave him a college scholarship.

"...the Solar System ranges beyond the Sun itself, maybe halfway to the next nearest star!"

That's the most persuasive line in your comment, but I doubt it's going to sway the jury once they get through counting the number of nails Mr. Nicey sent through that little boy's body in order to send him to a horrifying death.

"...if Tsarnaev is convicted, [he] merits the ultimate legitimate punishment of life without parole."

The law, Supreme Court precedent, our nation's history, and majority opinion in this country all rebut your notion of what constitutes the "ultimate legitimate punishment."

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