On Jan. 30, the US Attorney’s Office for the District of Massachusetts filed its Notice of Intent to Seek the Death Penalty for Dzhokhar Tsarnaev for the Boston Marathon bombings. While some victims and their families supported and some opposed the decision, any expectation that Tsarnaev will be put to death might be misplaced. The ethics of the issue aside, it is questionable whether seeking the death penalty is ever worth the time and resources that it takes to sentence someone to death — especially in a state like Massachusetts which does not have a state death penalty and where polls routinely confirm majority opposition to the punishment — when the likelihood that the penalty will be carried out is highly remote.
A death penalty case is hugely resource intensive. A fair estimate is that takes three prosecutors working full time for about three years to prosecute such a case. Their focus on one case comes at the expense of all of the other cases that they would have investigated and prosecuted during that same time period. According to a recent report by the Boston Bar Association, a single federal death penalty case in Philadelphia was found to cost upwards of $10 million — an estimated eight times higher than the cost of trying a death eligible case where the prosecutors seek only life imprisonment.
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The expenditure of time, money and sparse judicial and prosecutorial resources is often justified by claims of a powerful deterrent message embodied in the ultimate punishment. But studies repeatedly suggest that there is no meaningful deterrent effect associated with the death penalty and further, any deterrent impact is no doubt greatly diluted by the amount of time that inevitably passes between the time of the conduct and the punishment. In 2010, the average time between sentencing and execution in the United States averaged nearly 15 years. A much more effective deterrent would be a sentence of life imprisonment imposed close in time to the crime.
More importantly, even in cases where the federal government files a Notice of Intent to Seek the Death Penalty, the chances of an individual defendant actually being executed are remote. Since 1988, the Department of Justice has authorized 492 death penalty prosecutions. More than half ended up in life sentences either by plea agreement or after a jury trial. Seventy two individuals have received death sentences, and there have been only three executions — fewer than one percent of authorized death penalty prosecutions.
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There was certainly political pressure to authorize the death penalty in the case of the Marathon bombing. It was a high profile crime that targeted an iconic event and resulted in deaths and injuries of scores of people, including children.
There were also mitigating factors though, such as the age of the defendant, his lack of a prior criminal record, and the influence of his older brother that could have justified settling for a life sentence.
A decision to forgo the death penalty in this case would have required political courage, but it would have saved years of judicial and prosecutorial resources, ensured that prosecutors were available to prosecute other cases and thereby help other victims, and likely resulted in a quick resolution to this case.
Imagine the deterrent power of being able to announce in advance of this year’s Boston Marathon on April 21 that Dzhokhar Tsarnaev had pled guilty and received a life sentence that guarantees that he will never again live a moment of his life outside of a prison. A quick and powerful result without the costs and uncertainties of a death penalty prosecution.
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Regardless of what we ultimately decide as a society about the morality of the death penalty, as a matter of resource allocation, pursuing the death penalty might not make sense no matter how heinous the crime.
Allison Burroughs, a former federal prosecutor, is a partner at the Boston law firm of Nutter McClennen & Fish LLP.