Even as doctors nurse the accused Boston bomber back to health, federal prosecutors in Washington are considering whether Dzhokhar Tsarnaev should be put to death. If convicted and given the death penalty, Tsarnaev would be strapped to a table and injected with a lethal cocktail of chemicals, possibly at the same Indiana federal prison where the Oklahoma City bomber, Timothy McVeigh, was executed twelve years ago.
But that outcome will only be possible if Attorney General Eric Holder asks for capital punishment for Tsarnaev’s role in the April 15 Boston marathon bombings, a sentence made possible by the charge that Tsarnaev used a weapon of a mass destruction in the attack.
That seems likely. Prominent Democratic senators are calling for the death penalty against Tsarnaev, and his legal team seems to expect it. In the case of the accused 9/11 plotters, Holder has called execution a means of achieving “justice.”
Still, Holder will make his decision at a moment of declining popular support for the death penalty, and amid a years-long halt in federal executions. Since 1963, only three federal convicts have been put to death—all of them between 2001 and 2003. Another 59 federal convicts are now on death row, according to Robert Dieter, executive director of the Death Penalty Information Center. Most of their cases are tangled up in the years-long appeals process and none have execution dates scheduled.
That’s a contrast to the pace of the mid-20th century, when dozen of convicts were hanged, gassed and electrocuted. Some were extreme cases of national security, like the six German would-be saboteurs captured on U.S. soil in 1942, and the Cold War spies Julius and Ethel Rosenberg, dispatched by electric chair in 1953. Others were an assortment of kidnappers, rapists, killers and bank robbers.
In the late 1960s, most executions in the U.S. stopped after legal challenges to state death penalty laws. But even the Supreme Court declared the punishment acceptable in 1976 and most states resumed the practice, the federal government did not.
A turning point came in 1988, when Ronald Reagan signed a law imposing capital punishment for drug-related killings—a response to a national drug epidemic. Michael Dukakis opposed the death penalty in his presidential campaign that year, an unpopular stance that Bill Clinton was accused of compensating for when, as a governor running for president in 1992, he denied clemency for a condemned Arkansas man with severe mental impairment.
As president, Clinton pushed for and signed a 1994 crime bill that extended capital punishment to more than 60 new offenses, including terrorism and weapons of mass destruction use—charges that enabled the death penalty for McVeigh, who carried out his attack in 1995 and was put to death in June 2001.
As it happens, Holder has described himself as death penalty opponent, although he has also said he would enforce capital punishment laws, and as attorney general he has done so. When he sought to try the September 11 mastermind Khalid Sheikh Mohammad in a New York federal court a few years ago, for instance, Holder defended the plan, in part, by arguing that KSM was likelier to get a death sentence in a civilian court rather than from a military commission.
Still, the federal government has not scheduled an execution under Obama, who says he supports capital punishment in rare cases. Since at least 2010 the Justice Department has been reviewing its execution protocols, thanks to a nationwide shortage of the lethal injection drug sodium thiopental. The death penalty has also grown politically controversial, as the advent of reliable DNA evidence testing has exposed wrongful convictions in capital cases. Polling still shows nearly two-thirds of Americans support executions in murder cases, but that number is down from a 1992 peak of 80 percent. (A majority of Americans have not opposed capital punishment since the mid 1960s, according to Gallup.)
While putting a convicted terrorist to death might seem highly uncontroversial, there is one practical argument against it: that foreign anti-death penalty governments might refuse to extradite terror suspects to America. Secretary of State John Kerry held this position as a U.S. Senator until he ran for president in 2004. Indeed, during the trial of the “20th hijacker” Zacarias Moussaoui, Germany and France supplied prosecutors with evidence only on the condition that it not be used to support his execution. (Moussaoui was sentenced to life in prison.)
Defense lawyers tell the Boston Globe that Dzhokhar Tsarnaev’s legal team might try to spare his life by emphasizing his age (nineteen) and the apparent leadership of his deceased older brother. They may also urge him to plead guilty: several notorious killers, including the Unabomber Ted Kaczynski, the Atlanta Olympics bomber Eric Rudolph, and the Tucson shooter, Jared Loughner, all pleaded guilty to their crimes and avoided likely death sentences as a result. In a 2011 Justice Department memo Holder wrote that “a defendant’s willingness to plead guilty will now expressly be recognized as a factor” in deciding whether to pursue capital punishment.
In which case Dzhokhar Tsarnaev’s best hope of escaping death by syringe may come down to three simple words: “Guilty as charged.”