It appears as though the manhunt is over. Law enforcement officers report they were looking for two suspects. Two brothers are now either dead or in custody. What next for the man-child suspected not just of placing a bomb or bombs at the finish line of the Boston Marathon, and then engaging in deadly shootouts with the police?
Dzhokhar Tsarnaev is reportedly in serious condition in a Boston hospital. Heavily armed police officers stand guard to assure he does not escape. He is nineteen years old.
He faces prosecution by both federal and Massachusetts prosecutors. His offenses will make him eligible for the death penalty in the federal system, but not in Massachusetts, where the death penalty has been repealed.
Will federal prosecutors seek death? They will almost certainly announce charges that carry that potential penalty, but the process of actually obtaining approval to seek to kill a defendant is complex.
Federal prosecutors in Massachusetts must first meet, consider the nature of the offense and the character of the defendant, and then make a recommendation about whether to kill him to their superiors in Washington. Once the case arrives in Washington, another committee will meet to consider the question. This committee will make a recommendation to Attorney General Eric Holder, who must sign off on any death-penalty prosecution.
These death committees, as they are called, are bizarre, otherworldly groups. I’ve twice appeared before them, even traveling to Washington, D.C., to meet with federal prosecutors in a particularly close case. The feds spared my clients’ lives in both cases, but those cases were not politically sensitive -- they involved non-publicized drug-related and contract killings.
The work of these committees is private, and takes place well before a decision is made about guilt or innocence. The decision about whether the government will seek death before the trial begins must be made early because a death penalty prosecution is fundamentally different than a simple murder case.
The key issue in screening cases for death is whether there is something about the defendant or the offense that is mitigating in character. In other words, although the offense may make the accused eligible for execution, is justice really served by the ultimate penalty?
In this case, there will be no hesitation by prosecutors in determining that death is the appropriate penalty for the offenses. The bombing was a classic act of terror, and the shoot outs with police officers while the defendants were on the run will only inspire prosecutors to dig in and drive a harder bargain.
Mr. Tsarnaev’s only real hope is that prosecutors will have pause about killing a 19-year-old.
Yes, the accused is an adult within the eyes of the law. But every parent knows the limitations of a late adolescent. Neurological evidence mounts that a brain is not fully formed until one’s mid 20s. Yes, Mr. Tsarnaev is capable of forming intent. He can be prosecuted. But what of his judgment? What explains his behavior?
Press accounts suggest that he fell under the influence of an older, and perhaps, bitter 26-year-old brother, who had recently travelled overseas and may have had radical ties to those who hate the United States. The older brother was killed in a shootout with the police. We’ll never truly know his story.
But those who know the 19-year-old are devastated and shocked. He is described as a sweet boy, a keen mind, a loving friend. In recent months, his grades deteriorated in college. Was he sliding into mental illness? Had he lost his way?
I was in New York City when my cellphone rang. My wife reported our niece attended a prom in a group with the young man. I was directed to a web page. There he was, standing next to a young woman I know and love. What am I to tell her if her government decides to kill a boy she knows, loves and cares for? I am darkened by the prospect of explaining death to this young woman.
The first challenge in the Tsarnaev case will be to get prosecutors to understand that he is not the sum of his worst moments. If guilty, he erred, and did so grievously. He can punished without being killed. That might be justice. In no case is it just to kill merely because we are angry, or because, in a passing moment, it seems just.
That’s what terrorists do.