Boston bombing suspect Dzhokhar Tsarnaev faces federal charges that carry the death penalty, a punishment that does not exist in Massachusetts since the state repealed it in the 1980s.
So far, no Massachusetts authorities have publicly objected to a potential death sentence, but the case does raise federalism questions, said Doug Berman, a law professor at the Moritz College of Law at the Ohio State University and the editor of the blog, Sentencing Law and Policy.
There is an understanding that federal authorities should be cautious before pursuing the death penalty in a non-death penalty state, said Berman. “But it's well established that the federal government and the Commonwealth of Massachusetts are separate sovereigns and each side has the right to vindicate its interest,” he said.
Tsarnaev was charged by a federal court, but he could still face charges in state court for a number of state crimes, including the murder of MIT security officer Sean Collier, kidnapping and carjacking of a man from a convenience store in the Boston suburb of Allston, and other serious state crimes.
Pursuing the federal death penalty in a non-death penalty state has aroused conflict before. Just last year, Rhode Island Gov. Lincoln Chafee argued all the way to the Supreme Court to keep the federal government from taking over the murder case against Jason Wayne Pleau because the federal prosecutor had said he would pursue the death penalty. Rhode Island has not had the death penalty since 1984, and before that, the state had not executed anyone in 99 years. Ultimately, the Supreme Court rejected the case and Chafee was forced to hand over Pleau to federal authorities. Pleau's federal trial for robbing and killing a gas station manager is ongoing.
In other contexts aside from the death penalty, the federal government's greater punishment schemes are seen as an asset, Berman said. For instance, state and local prosecutors often work with federal authorities to charge regular offenders under the federal Armed Career Criminal Act, a three-strike type law which mandates long prison sentences for routine offenders. Many local prosecutors also work with federal authorities to turn gun crimes into federal cases so that the punishment is harsher than what is available in the state.
It's not clear that anyone in Massachusetts is objecting to a potential death sentence in the bombings that killed three and injured hundreds, and in fact, a bipartisan group of lawmakers filed a bill Tuesday to reinstate the death penalty.
“What if he were not going to be federally charged?” said Republican Rep. Shaunna O'Connell in an interview with the Boston Globe. “In Massachusetts, there would be no death penalty for him.”
The federal interest in the case against Tsarnaev is national security and so far, state and federal authorities are cooperating. There's no federalism ground for the state of Massachusetts to object to a death sentence, said Robert Chesney, a professor at the University of Texas School of Law, since the federal charge carries a federal death sentence. The final decision on whether to seek the death penalty will be made by Attorney General Eric Holder.
Currently, the state does not plan to introduce state charges against Tsarnaev, said Jake Wark, press secretary for the Suffolk County district attorney who handles all violent crime in Boston. Wark said that in the first few hours after the explosions near the finish line of the Boston Marathon, the Suffolk County District Attorney's Office was responsible for the case and handled it like any triple murder investigation. But after the call came from Washington late Monday afternoon, the district attorney's office deferred to the United States Attorney's Office to proceed with the terrorism investigation.
Gov. Deval Patrick has been silent on the issue since the bombings, but said in 2005, “The death penalty can never be made foolproof, it is not a deterrent, and the huge costs incurred in capital proceedings divert resources away from actually fighting and prosecuting crime.”
So far in the investigation, federal, state and local authorities have worked together nearly seamlessly. David Laufman, a former federal prosecutor in the Eastern District of Virginia, said that is the result of 10 years of relationship building between the FBI and state and local law enforcement. In Boston, the joint terrorism task force, headed by the U.S. Department of Justice and FBI but also staffed with state and local officers, is taking the lead in the investigation.
“The FBI took some lumps in the 9/11 era for big-footing state and local law enforcement in national security and in other cases,” said Laufman, “but the FBI's made a concerted effort to improve state and local relationships and now there are much better working relationships for the FBI to work in cases like this.”