There was little surprise in a federal jury voting death for Boston Marathon bomber Dzhokhar Tsarnaev, and little ground for sympathy in the record of the defendant himself, beyond his sheer youth. While the evidence presented at trial seemed to confirm the picture of his enraged older brother Tamerlan as the radicalized instigator of their brutal plot, Dzhokhar’s protracted role ahead of time and his stone-cold activities in the hours following the bombing (for example, calmly cruising the dairy aisle at Whole Foods) are not the material from which a strong mitigation case is made.
But while perhaps inevitable, Tsarnaev’s federal death sentence is still profoundly unsettling. He was sentenced to death in a state that abolished capital punishment 31 years ago; in a city whose residents had overwhelmingly preferred that he be imprisoned for life; and in a courtroom in which sat survivors and victims’ family members who were themselves deeply divided over his fate. What does it mean when a killer is sentenced to die by lethal injection against the wishes of the very community he injured? What is the purpose of a federal prosecution imposing capital punishment on a region that wants none of it, at a moment when the death penalty has been abandoned by more than one-third of all states?
State death-penalty law, for better or worse, is usually a deep reflection of local history, culture, and debate. That’s true in the states that still routinely execute prisoners, like Texas and Oklahoma, as well as in the nine states that have abolished capital punishment since 1980, like Massachusetts.
Today’s federal death penalty—a calculated political invention of then-president Bill Clinton—is a different story. Until 20 years ago, capital punishment on the federal level was limited to treason and a handful of other offenses not covered by state law. But in 1994, the Clinton administration—responding to the first World Trade Center bombing and hoping to burnish its tough-on-crime credentials—radically expanded capital punishment, writing 60 new death-penalty offenses, including several related to terrorism, into a sweeping criminal-justice “reform” package.
It didn’t do much good; seven months after the Clinton crime bill was signed, Timothy McVeigh and two co-conspirators bombed the Murrah Federal Building in Oklahoma City. So the next year, Clinton and Congress went even further, passing the Antiterrorism and Effective Death Penalty Act. This package—one of the most deceptively labeled bills of all time—limited habeas corpus and weakened the protections offered to state and federal death-row prisoners, most of whom had nothing to do with terrorism.
Far from reflecting a social consensus, these changes were designed to inoculate Clinton and his allies in the country’s most ardently pro-execution regions and to resell capital punishment to states that had rejected it. US Attorneys could push capital trials into non-death-penalty jurisdictions, occasionally leading to notable conflicts. In 2011, for instance, federal prosecutors in Rhode Island—a state without capital punishment since the 1980s—insisted on pursuing the death penalty against a gas-station robber who would otherwise have been sentenced in the state’s criminal courts. Then-governor Lincoln Chafee was so incensed at this imposition that he committed a singular act of civil disobedience: For almost two years, he refused to hand the offender over to the feds. The dispute was settled only when the robber pleaded guilty in return for life without parole.