Jane Flavell Collins / Reuters

Tsarnaev sentencing gauges shift on death penalty

When jurors return with a sentence, it will likely be read as a judgment on the death penalty itself

The sentencing phase of the trial of Dzhokhar Tsarnaev, the 21-year-old convicted Boston Marathon bomber, began this week, with prosecutors contrasting the portrait of an unrepentant killer against the grief of victims in their efforts to secure the death penalty.

When the 12 jurors return in about four weeks with a sentence of either life without parole or death, the verdict will likely be read as a judgment on capital punishment itself.

In recent years, public support for the death penalty in the U.S. has waned. A March Pew Research poll found that 56 percent of Americans favor the sentence for those convicted of murder — a decline of 6 percentage points since 2011. Since the 1976 reinstatement of the death penalty, support for it peaked at 78 percent in 1996.

As the appetite for the death penalty has diminished — spurred, in part, by revelations of wrongful convictions — juries have become more reticent to hand down the ultimate punishment. In 2014 judges and juries issued 72 death sentences, the fewest in the 40 years of the modern death penalty, according to data compiled by the nonprofit Death Penalty Information Center.

Moreover, executions actually carried out stood at a 20-year low of 35.

A sentence of life without parole for Tsarnaev, who was found guilty of all 30 counts he was charged with, would be an indication of where the country is headed on the issue, said Robert Dunham, the executive director of the Death Penalty Information Center.  

“On the level of severity of murders, this ranks pretty high. If the jury, given those facts and the enormous effort made by the federal government to obtain death penalty, ends up rejecting the death penalty, that is pretty significant,” he said. “It would reflect the sea change in public attitude about the death penalty in the last generation.”

Even with the horrifying nature of Dzhokhar Tsarnaev’s weeklong rampage in Boston with his older brother, Tamerlan Tsarnaev, during which they killed four people, injured 260 and left Bostonians locked down in their homes during a prolonged manhunt, residents of the city and the rest of the state have shown a reticence to embrace the death penalty.

Only 33 percent of surveyed Massachusetts voters said they favor the death penalty for Tsarnaev, according to a Suffolk University poll released this week. Among Boston voters, a poll conducted by Boston’s WBUR radio station found that only 27 percent of respondents said they supported the death penalty in the case. The Bay State abolished the punishment in 1984, but it is an option for Dzhokhar Tsarnaev because he is being tried in federal court.

Views among the victims and their family members have been mixed, but some have said they strongly prefer life without parole. 

“We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it,” Bill and Denise Richard, the parents of 8-year-old Martin Richard, who was killed in the bombing attack, wrote in an editorial in The Boston Globe. “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.”

Tsarnaev’s federal trial was always going to be a capital case. Potential jurors who said they were categorically opposed to the death penalty were dismissed.

“You have a jury, by the very nature of the manner which it is selected, is incapable of reflecting the conscience of the Boston community,” Dunham said. “Will they be influenced by their perception of the public attitude of the death penalty? They’re not supposed to be, but they may be.”

Douglas Berman, a law professor at Ohio State University’s Moritz College of Law who specializes in criminal sentencing, said that jurors, consciously or unconsciously, are inclined to do what they believe public wants when it comes to sentencing in such a highly charged, emotional case.

“I certainly think … the national mood and the Massachusetts mood and the Boston mood may free the jury up in some sense not to worry quite so much about what the community might think if they were to return a life sentence rather than a death sentence,” he said. “I do think it’s hard to avoid the sense ‘If I get this wrong, I will be forever as one of those jurors that got this wrong.’”

Berman said that prosecutors, arguing for capital punishment, will emphasize the heinous, premeditated nature of the crimes and the widespread destruction, whereas defense attorneys, seeking life imprisonment, will focus on mitigating factors for Tsarnaev, who was a teenager at the time of the bombing and was, according to the defense, following the orders of his older brother.  

Regardless of the specific merits of those arguments, because it is such a high-profile terrorism case, the sentence will likely be interpreted as a larger statement on society’s view of the appropriate kind of punishment for the worst of the worst when there is little ambiguity regarding guilt.

A death sentence requires unanimity among the 12 jurors. “It’ll be easier to read a death verdict than a life verdict. It would be a repudiation of all the arguments for something less than death,” Berman said. “A life verdict just leaves you with some certainty — which one of those arguments against death swayed one juror or multiple jurors?”

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