Despite Boston attack, many still oppose death penalty

Massachusetts abolished the death penalty in 1984, ending a struggle that began as early as the American Revolution. The cradle of US democracy carried out its last execution 68 years ago. But the state's progressive history could not spare the life Dzhokhar Tsarnaev.

The 21-year-old son of Chechen parents was sentenced to death on six counts for his role in the April 2013 bomb attack at the Boston Marathon. Tsarnaev received the death penalty because he was tried in a federal court, where capital punishment still exists. Had he been tried in a Massachusetts state court, he would have received a maximum sentence of life imprisonment.

Tsarnaev helped plan and execute the bombings, which killed three people, including an 8-year-old boy. Some 264 people were injured, and more than a dozen survivors lost limbs. It was the deadliest terrorist attack on American soil since September 11, 2001. His brother and co-conspirator, Tamerlan, died in a shootout with police after the bombings.

Despite the heinous crime, a solid majority of residents in the greater Boston area still remain staunchly opposed to the death penalty, even for Tsarnaev. Last March, public radio station WBUR found that 49 percent of residents supported life in prison, compared to 38 percent of respondents who thought he deserved to die.

The number of people supporting life imprisonment for Tsarnaev actually rose by nine points to 58 percent after he was convicted. Excluding the outlying regions and looking just at residents of Boston city proper, 61 percent of respondents supported a life sentence instead of death.

"Bostonians, Massachusetts people in general, are so pleased with the fact they abolished capital punishment," Alan Rogers, a professor at Boston College and author of "Murder and the Death Penalty in Massachusetts," told DW.

"It's part of our culture; it's part of not only the legal culture, but the religious and broader social culture of the state," he added.

Jury screened about death penalty

So if Bostonians generally supported life imprisonment, why did a jury made up of their peers ultimately impose death? Prior to selection, potential jurors are asked whether they could impose the death penalty if the evidence warrants it. Only those who answer yes can serve on the jury in a capital case.

"You clearly have to be willing to apply the law, and the law in the death penalty setting is your willingness to apply the death penalty," Nancy Gertner, a former federal judge and current professor at Harvard Law School, told DW.

But support for the death penalty can range from reluctant to enthusiastic, according to Gertner, who said that the precise views of the jurors in Tsarnaev's trial are unclear because the selection process was largely sealed.

"There are ranges of attitudes and the question is whether this jury was as fair as it could be given that range," Gertner said.

'Years of appeals'

The prosecution could have declined to seek the death penalty altogether. Many federal capital cases end in a plea deal in which the defendant pleads guilty in return for life imprisonment without the possibility of parole.

Some of the victims' families supported this route. Bill and Denise Richard lost their 8-year-old son Martin in the attack, and their 7-year-old daughter lost a limb. The parents made a personal appeal on the editorial page of "The Boston Globe" newspaper in support of life imprisonment, saying the death penalty would only prolong their pain.

"We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives," they wrote.

According to Gertner, Tsarnaev's lawyers will likely file motions challenging the verdict, raising issues about the jury selection, the decision to hold the trial in Boston and the timing.

"There are substantial issues that would warrant overturning," Gertner said. "Not the least of which is how did it come to pass that this case was tried on the second anniversary of the [bombing]."

Based on those motions, there will subsequently be an appeals process, which could potentially reach as far as the Supreme Court.

Broader debate

The broader context of the national debate about the death penalty could also prolong the Boston bombing case. There's currently a case pending before the Supreme Court challenging the use of the drug midazolam in lethal injections. Midazolam, the first in a three drug mix, has been used in three botched executions.

In response to the failed executions, President Barack Obama ordered a review last year of how the death penalty is carried out. During his tenure as attorney general, Eric Holder called for a moratorium on the death penalty. But he emphasized that he was only expressing his own opinion, not that of the administration. His successor, Loretta Lynch, supports capital punishment and has said that in the case of Tsarnaev death was a "fitting punishment for this horrific crime."

In federal capital cases, death row inmates face the method of execution employed by the state in which they are condemned, according to the Death Penalty Information Center (DPIC).

But Massachusetts has no method of execution because it abolished capital punishment. In this scenario, the judge can choose a different state to carry out the execution. Thirty-two states in the US still have the death penalty, though 30 have not carried out an execution in the past five years, according to DPIC.

A federal death row inmate has not been executed in the past 12 years.