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opinion | Daniel S. Medwed

Tsarnaev decision increases incentive for plea deal

Prosecutors will seek the death penalty for Dzhokhar Tsarnaev.

FBI via AP/file 2013

Prosecutors will seek the death penalty for Dzhokhar Tsarnaev.

Many OF us are troubled by Thursday’s decision by federal prosecutors to pursue the death penalty against alleged Boston Marathon bomber Dzhokhar Tsarnaev. Massachusetts lacks capital punishment for state crimes and, while technically proper, it may feel unjust for prosecutors to seek the death penalty in federal court in the Commonwealth.

As a lifelong opponent of capital punishment, I share those misgivings. But I am also a realist, prompting me to look at the practical consequences of this development. In my view, the decision may ultimately produce an outcome that advances the strategic interests of both the prosecution and the defense. Here’s why.

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First, the Department of Justice basically had little choice. If it neglected to pursue death penalty charges, then it might have appeared “soft” on domestic terrorism and inconsistent in applying the federal death penalty in different regions of the country. More notably, it would have taken an important bargaining chip off the table for plea negotiations.

Second, had prosecutors refused to seek capital punishment, Tsarnaev’s team would likely have filed a “transfer of venue” motion, namely, a request to have the case tried outside of Boston because of pretrial publicity. If the death penalty were not at issue, Tsarnaev’s attorneys would have an incentive to make this claim in the hopes that a jury outside Boston might be more amenable to any potential defense strategy. With the death penalty in play, however, the incentive for the defense to seek a change of venue is less clear. The widespread moral opposition to the death penalty in the Commonwealth means that, even if the defense team still has a daunting task during the guilt phase of the case, it may fare well during the sentencing. In light of Thursday’s announcement, his defense team may feel content to keep the case here. And this, ironically, may be problematic for prosecutors because they are well aware of the hurdles in trying to secure a death verdict in the Bay State.

The upshot is that both sides now have some degree of leverage to hammer out a plea bargain, and neither side has a particularly strong interest in proceeding to trial. The jury might reject the death penalty during sentencing; the facts appear damning to the defense for the guilt phase.

The result, I suspect, will be a plea bargain that avoids a protracted, emotional, and expensive trial and ensures that Tsarnaev spends his remaining days behind bars.

Daniel S. Medwed, a professor at Northeastern University School of Law, is author of “Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent.”
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