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Death penalty for Boston bombing suspect? Holder will decide soon

Dzhokhar Tsarnaev holds up a bandaged at his arraignment on July 10, 2013, in a courtroom sketch. The Boston Marathon bombing suspect plead not guilty to all charges on Wednesday.

Attorney General Eric Holder is preparing to announce by the end of the month whether he will authorize federal prosecutors to seek the death penalty in the Boston Marathon bombing case.

Dzhokhar Tsarnaev awaits trial on charges that he and his brother built and planted two pressure cooker bombs that killed three people and injured at least 260 others.

Holder has authorized the death penalty several times during his tenure as attorney general, though none of those previous cases involved an act of terror with such a national impact.

"We will hold those who are responsible for these heinous acts accountable to the fullest extent of the law," he said when the bombing charges were filed last April.

Since then, the Boston Globe has urged Holder not to seek the death penalty for Tsarnaev.  In an editorial last fall, it said the legal appeals would stretch on for years.

"Such lengthy proceedings would ensure that the Marathon bombing case lingers in the spotlight, compounding the sense of injury to victims.

"Much better to let Tsarnaev slip into obscurity in a federal prison cell, and stay there." 

A poll conducted for the Globe found that 57 percent of Boston residents surveyed favored a sentence of life without parole if Tsarnaev is convicted, while 33 percent thought death would be the appropriate punishment.

VKontakt

An undated image from Dias Kadyrbayev's page on the Russian social networking site VKontakt shows Kadyrbayev, left, with Boston Marathon bombing suspect Dzhokhar Tsarnaev.

And last month, the Boston Bar Association expressed its opposition to seeking capital punishment in the federal system, declaring that "pursuit of the death penalty is almost always an empty and inordinately expensive gesture."

Executions in the federal system are rare. In the modern era of the death penalty, since the US Supreme Court forced a change in sentencing laws in the mid-1970's, the federal government has carried out just three executions.  The most recent was more than a decade ago.

Twenty defendants are now on trial on capital charges, or are about to be, while 56 others are pursuing appeals of their death sentences, many that last for years.

The federal execution system has been put on hold by a court battle over the combination of drugs used to administer a lethal injection. One of the drugs is no longer available, forcing the Bureau of Prisons to consider alternatives. 

"The assessment is ongoing and no final determinations have been made as to specific changes to the protocol," said the judge overseeing the challenge in federal court in Washington, D.C.

Still, most legal experts expect that Holder will authorize the death penalty for Dzhokhar Tsarnaev.

"If you don't use it in this kind of case, where someone puts down bombs down in crowds, then in what kind of case do you use it?" asked Aitan Goelman, a former Justice Department lawyer who helped prosecute Oklahoma City bomber Timothy McVeigh.

McVeigh’s death, at the federal prison in Terre Haute, Ind., in 2001, was one of the three executions carried out in the federal system since the mid-70s.

Michael Sullivan, a former U.S. Attorney in Boston, agrees. "A jury should have the opportunity to consider death. This is a horrific terrorist act that occurred on our soil."

Seeking the death penalty would also provide an incentive for Tsarnaev to plead guilty in order to avoid the possibility of capital punishment.

"When you put that chip on the table, it enhances the possibility of a plea bargain," said Prof. Ira Robbins, an expert on the federal death penalty at American University's Washington College of Law.

Under federal rules, the U.S. Attorney in Boston, Carmen Ortiz, makes a confidential recommendation to the Justice Department on whether to seek the death penalty. The final decision is made by Attorney General Holder.

Massachusetts is one of 18 states that have abolished capital punishment.  But US attorneys can still seek the death penalty in those states, because the federal legal system is entirely independent.

If a jury did recommend a death sentence, it would be carried out at a federal prison in Indiana.

A trial date for Tsarnaev has not yet been set.