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Experts Question Legal Theory That Makes Boston Bomber Eligible for Death

FILE - Dzhokhar Tsarnaev is pictured in this handout photo presented as evidence by the U.S. Attorney's Office in Boston, Massachusetts on March 23, 2015. Tsarnaev was heavily influenced by al-Qaida literature and lectures, some of which was found on his laptop,

Now that a jury has found Boston Marathon bomber Dzhokhar Tsarnaev guilty on 30 federal charges – 17 of which carry the death penalty – the trial now moves to the sentencing phase. The seven women and five men on the jury will now decide whether Tsarnaev should be executed or spend the rest of his life in prison.

That Tsarnaev is even facing the death penalty is a prospect that troubles some legal experts – even some who support the death penalty.

At the heart of the debate is the issue of federal supremacy.

In the U.S. legal system, individual states have jurisdiction over most crimes committed inside their borders. Under normal circumstances, Tsarnaev would have been tried in a state court. Had that happened, Tsarnaev would have at most faced multiple life sentences but he could not have been executed since Massachusetts banned the death penalty in 1984.

The use of the death penalty in the U.S. has steadily declined in recent years. Currently, it is legal in only 32 states. Since it was reinstated in 1976, nearly 1,400 people have been put to death in the U.S.

U.S. Attorney General Eric Holder, who generally opposes capital punishment, authorized federal prosecutors to seek the death penalty in this case, saying that Tsarnaev acted in “an especially heinous, cruel and depraved manner” with a seeming lack of remorse.

Under the so-called “supremacy clause” of the Constitution, whenever there is a conflict between state and federal law, the government has final say.

Using a complex legal rationale that the bombing impacted interstate commerce, the Justice Department charged Tsarnaev with using a weapon of mass destruction and the “malicious destruction of property” that caused the deaths of three people.

But many legal experts believe this was not a federal crime — including some who support the death penalty and believe Tsarnaev deserves to be executed.

“The essence of state sovereignty is to define, detect, prosecute and punish crime, and it always has been,” said Robert Blecker, professor of constitutional history and criminal law at New York Law School and author of The Death of Punishment: Searching for Justice among the Worst of the Worst.

“The fact is that federal criminal jurisdiction has wildly expounded beyond bounds and beyond original promise, so that even breathing can be a federal crime if the feds want it to be,” Becker said.

Defense attorneys Judy Clarke (L) and David Bruck arrive before closing arguments in the trial of Dzhokhar Tsarnaev at the federal courthouse in Boston, April 6, 2015.
Defense attorneys Judy Clarke (L) and David Bruck arrive before closing arguments in the trial of Dzhokhar Tsarnaev at the federal courthouse in Boston, April 6, 2015.

But there are other troubling aspects to the case, says Boston lawyer Max Stern, who serves on board of the Massachusetts Citizens Against the Death Penalty.

For one, the jury may be predisposed toward the death sentence.

“You pick the jury in these cases by doing what’s called ‘death qualifications,’ he said. “And those people who are against the death penalty as a matter of principle are not eligible for jury service. They are eliminated.”

Second, he believes the trial should not have been held in Boston, where it would be almost impossible to form an impartial jury.

“You start with a pool of potential jurors who are already biased in one direction. And then you are picking these jurors from a section of the population of the state, almost all of whom have been peripherally affected by the offense,” Stern said.

But in a recent Boston poll, 62 percent of respondents said they believed Tsarnaev should receive a prison sentence. Only 27 percent believe he should die.

Tsarnaev’s lawyers filed for a change of venue several times, but the federal judge rejected their motions, saying this was a matter that could be brought up in a later appeal.

In the upcoming penalty phase of the trial, jurors will consider any extenuating factors that could impact their final decision on whether he should be put to death.

The defense has argued that Tsarnaev acted under the strong influence of his older brother, who died after a shootout with police several days after the bombing.

One of his attorneys, Judy Clarke, helped several high-profile defendants avoid the death penalty, including “Unabomber” Ted Kaczynski and Zacarias Moussaoui, who is currently serving a life sentence for his role in the 9/11 attacks.

Although the federal death penalty has been authorized for about 500 people, only three have been put to death – among them, Oklahoma City bomber Timothy McVeigh.