The federal grand jury returned an indictment against Tsarnaev, on counts of using weapons of mass destruction and four deaths. (I am interested to note that the fourth death is that of Sean Collier, but there is no felony-murder charge for the death of Dzhokhar’s brother. ) Seventeen of the charges carry a possible death penalty, which is available under federal law but not in Massachusetts.
In 2004, Gov. Mitt Romney created a panel to examine reinstating the death penalty in Massachusetts; he then drafted legislation and presented it to the Massachusetts Legislature for approval. One key provision was that there be physical evidence linking the alleged murderer to the crime scene, e.g. DNA. (I will note that a lack of physical evidence connecting the alleged murderer to the crime was a crucial plot device in John Grisham’s “The Confession“, his second fictional book arguing against the death penalty. In the epilogue, Grisham approvingly writes that the real murderer will get the death penalty.) Romney’s proposal went down in flames; Massachusetts firmly declared that it would not condone capital punishment under any circumstances.
Since Massachusetts doesn’t have the death penalty, there is a big push to make a federal case (literally) out of the Marathon bombings. As someone who is not opposed to capital punishment, I have no problem with the feds trying to give Tsarnaev the needle, but I question the rest of my state. Those who are truly against capital punishment ought to be begging the Suffolk County and Middlesex County D.A.s to try Tsarnaev and imprison him for life, and to fight the federal government to not execute him. They ought to be saying, “Our state has repeatedly rejected attempts to have the death penalty, and the federal government should respect that desire by not imposing capital punishment, or allowing our state to try the case.”
But the silence seems to indicate that Bay Staters believe that capital punishment is acceptable for crimes committed in Massachusetts by Massachusetts residents, killing only Massachusetts residents, so long as some other jurisdiction does the dirty work.
It is reminiscent of Martha Coakley attempting to support the death penalty for KSM while opposing capital punishment. Ultimately, death penalty abolitionists need to confront the idea that a blanket prohibition on the death penalty applies to Khalid Sheik Mohammed, Dzhokhar Tsarnaev, Timothy McVeigh, and Ted Bundy. If you want the death penalty for those people, or even some of them, then you need to figure out a law that enables a state to execute them.
The Fog of Law 