Death penalty at issue for suspect

Complicating factors at play for fed government in Massachusetts

WASHINGTON — When gang members Richard Tipton, Cory Johnson and James Roane were sentenced to death in 1993 for their roles in multiple murders, they took their places on federal death row, where they have remained for two decades.

A series of appeals and a more recent challenge to the lethal injection protocol used in federal executions have helped prolonged their lives in a place where — despite its designation — executions are rarely carried out.

The high-security wing at the U.S. Penitentiary in Terre Haute, Ind., now represents an increasingly complicated backdrop for a decision Attorney General Eric Holder is set to make in the next several weeks on whether to pursue the death penalty in the federal government’s prosecution of Boston Marathon bombing suspect Dzhokhar Tsarnaev.

There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others. Yet the government’s record in carrying out the death penalty is mixed, and there are conflicting views about whether the often-delayed penalty is an appropriate punishment if the 20-year-old defendant is convicted in the bombing case.

Since the federal death penalty was reinstated in 1988, only three offenders have been executed and none in the past 10 years.

In the case of Tsarnaev, there are potentially complicating factors at play for the federal government in Massa- chusetts, a state long opposed to the death penalty.

In September, less than six months after the attack, a poll commissioned by The Boston Globe found that 57 percent of Boston residents favored Tsarnaev’s facing life in prison without parole, while only 33 percent supported death.

The opposition, in the city deeply scarred by the bombing, crossed political lines with Democrats overwhelmingly favoring life in prison at 61 percent to 28 percent and Republicans more narrowly supporting prison over death at 49 percent to 46 percent.

“It’s one thing for the government to be willing to impose the death penalty; it will be a lot harder to find people in Massachusetts to serve on a jury who would vote for the death penalty,” said Andrew Smith, director of the University of New Hampshire Survey Center, which conducted the poll. “It’s not terribly surprising given that it is Massachusetts.”

Aitan Goelman, a former federal prosecutor who assisted in the Oklahoma City bombing prosecutions, said the federal government’s rarely used execution chamber reflects a system “slanted against” execution.

From the mandatory pre-prosecution review to determine whether to pursue the maximum punishment to the actual prosecution, Goelman said, there are required thresholds in the federal system that don’t exist in most states.

In most death penalty states, the decision to seek death is left solely to local district attorneys.

In the federal system, meanwhile, those decisions are consolidated within the Justice Department and ultimately left to the attorney general.