Ask a Lawyer: Should the Boston Marathon bomber be sentenced to death?

How does a state sentence a terrorist to death when that state no longer has the death penalty? The state of Massachusetts is one of 18 states that does not have the death penalty, which they eliminated in 1984. So, you may ask – How can 21-year-old Dzhokhar Tsarnaev be sentenced to death if the murders occurred in Boston, Massachusetts?

The answer is that the state of Massachusetts is not prosecuting Tsarnaev, the federal government is prosecuting him. The United States government reinstated the death penalty in 1988, so no matter what the law is in your particular state, the death penalty may be imposed if the criminal conduct in question constituted a violation of federal law.

Nevada, incidentally, has the death penalty as one of its current state laws.

Tsarnaev was convicted at trial on all 30 counts and the same exact jury that convicted him will decide if he should be put to death for his actions. The decision must be unanimous, so that all 12 jurors either support putting the Boston Bomber to death by lethal injection or all 12 jurors agree to give him life in prison without the possibility of parole.

Now 21, Tsarnaev was 19 years old and had no criminal record when he murdered three people (four including the MIT campus officer that he and his brother murdered while fleeing) and brutally injured 264 others. The defendant packed metal shards, pellets and nails into two homemade bombs that he and his brother detonated near the finish line of the Boston Marathon. The list of permanently injured and maimed victims of this young terrorist bomber is staggering, and the photographs of the injuries at the finish line are unfathomable.

Two of the wounded were Jessica Kensky and Patrick Downes, a newlywed couple who both lost legs during the attack. One of those killed was an innocent 8-year-old spectator named Martin Richard, whose little 7-year-old sister, Jane, survived but had her leg blown off. One woman, 47-year-old Celeste Corcoran had both of her legs blown off. A 27-year-old man named Jeff Bauman, Jr., also had both of his legs blown off in the attack.

For what this person has done to cause so many people pain, anguish and to suffer such unthinkable loss, should he be put to death?

Before you respond to that question, let us first discuss the death penalty and what it takes to legally arrive there. What factors are to be applied by jurors to get a defendant to the death penalty? What are the factors that take the crime of murder to death penalty murder?

There are two types of factors the jurors must consider. The first set are the aggravating factors, which are factors that increase the severity or culpability of a criminal act and make it worse. The second set are the mitigating factors, which are factors that lessen the severity of a criminal act and support leniency away from the maximum penalty. Federal law is very clear on what constitutes an aggravating factor and what constitutes a mitigating factor. The government must prove each of its aggravating factors beyond a reasonable doubt – that is the highest burden that exists in the American judicial system. Yet, the defendant must establish their mitigating factors only by a preponderance of the evidence – which is a much lower burden of proof to meet. Once the jury finds that there is one or more aggravating factor, then they are instructed to determine if there exist any mitigating factors that may negate the aggravating factors.

Some of the relevant aggravating factors for the Boston Bomber terrorist are:

1. Death during the commission of another crime – Did the death, or injury resulting in death occur during the commission or attempted commission of, or during immediate flight from the commission of the destruction of property affecting interstate commerce by explosive, or the use of weapons of mass destruction?
2. Grave risk of death to additional persons – Did the defendant, either in the commission of the crime or in escaping apprehension for the violation of the offense, knowingly create a grave risk of death to 1 or more persons in addition to the victims of the offense?
3. Heinous, cruel or depraved manner of committing the offense – Did the defendant commit the crime in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim?
4. Substantial planning and premeditation – Did the commission of the offense require substantial planning and premeditation to cause the death of a person or to commit an act of terrorism?
5. Vulnerability of the victim – Were the victims of the crime particularly vulnerable due to old age, youth or infirmity?
6. Did the defendant commit the offense against a law enforcement officer while he or she was engaged in the performance of his or her official duties?
7. Multiple killings or attempted killings - Did the defendant intentionally kill or attempt to kill more than one person in a single criminal act?

Some of the relevant mitigating factors for the Boston Bomber terrorist are:

1. Duress – Was the defendant under unusual and substantial duress regardless of whether or not the level or degree of duress rose to the level of an actual defense to the crime charged?
2. Minor participant – Was the defendant a minor participant in the offense, even though he was charged as a principal? The defendant’s role in the commission of the crime must be relatively minor.
3. No prior criminal record
4. Disturbance – Was the defendant under a severe mental or emotional disturbance?
5. Other factors – This includes the defendant’s background, record, character or any other circumstance that may mitigate against the application of the death penalty.

A complete list of the all aggravating and mitigating factors for the death penalty can be found in Title 18 USC 3592.

There is no question that in this particular case, the aggravating factors outweigh the mitigating factors and the death penalty can be imposed. The real question is, should it be imposed?

Without discussing whether the death penalty is morally or ethically proper, the most obvious answer is that the death penalty should be imposed because the legal qualifications for the penalty are met. Many say, without question, that Dzhokhar Tsarnaev deserves to die for the vast amount of pain, suffering and anguish that he has caused for thousands of people. Many cannot think of a more appropriate offense for the imposition of the death penalty, than this act of terroristic destruction.

However, Dzhokhar Tsarnaev wants to die for this. He believes that if he dies for this offense, he dies a martyr, a hero, and will be heavily rewarded in the afterlife. When the Boston Bomber was caught hiding inside of a boat in a Boston backyard, he expressed jealously about his brother Tamerlan Tsarnaev being so lucky because he was killed earlier in a shootout with police. Make no mistake, Dzhokhar Tsarnaev wants to die.

Herein lies the issue: The punishment for this terrorist must actually be punishment, and not what the terrorist wants. Images of this antagonistic and unrepentant killer flipping his middle finger up at the camera in his prison cell tells us so much about how little he cares about the destruction he has caused. Do the jurors give him what he wants, by putting him to death, or do they place him in nearly total isolation in what the government has said would be 23-hours-a-day lock-down for the remainder of his life?

We must also consider the precept that justice is to treat like cases alike. Keeping that in mind, imposing the death sentence on this killer is appropriate. Dzhokhar Tsarnaev’s conduct rises to the level of the imposition of the death penalty and the number of lives he took and those he permanently maimed calls for it. Yet, the punitive nature of the criminal justice system, as it applies to murder, is that the penalty should be punishment. Is Dzhokhar Tsarnaev’s current life worth anything to him, so that taking it from him would be punishment?

The question the jurors will be obligated to answer is as follows: Should Dzhokhar Tsarnaev be sentenced to death for detonating two bombs near the finish line of the Boston Marathon in 2013? Or, should he spend the remainder of his life in a 6-by-9-foot prison cell on 23-hour-a-day lock-down, without the possibility of parole?

The jurors will soon tell us of this terrorist’s fate. Until that time – what do you think should happen to him? To die, or not to die, that is the question.

This information is for educational purposes and should not be considered specific legal advice. Always consult with a qualified attorney regarding your individual circumstances.

Marc Saggese is the owner of The Law Offices of Saggese & Associates. He has been a Las Vegas personal injury and criminal defense attorney for over 15 years. Mr. Saggese writes weekly about various issues of the law for reviewjournal.com. For more information visitwww.MaxLawNV.com or connect with him on Twitter, Facebook or Linkedin.