Recent Developments in Capital Punishment

This week, the BBA’s position on the death penalty is back in the news, after BBA President Julia Huston released a statement urging the Department of Justice (DOJ) to take the death penalty off the table in its prosecution of the Boston Marathon bombing case and instead pursue a sentence of life without the possibility of parole.

The BBA has opposed the death penalty for more than 40 years, and just over a year ago we clarified that our position extends to federal cases as well.  In doing so, the BBA ratified the work of our Death Penalty Working Group, which had released a report on the issue entitled “The BBA and the Death Penalty”.

The report found that the inevitability of error makes it overwhelmingly likely that innocent defendants will be executed, and that the death penalty disproportionately affects racial and ethnic minorities. Furthermore, even when the facts of a specific case do not appear to raise questions about innocence or discrimination, pursuit of the death penalty is fraught with delay, inordinately expensive, and offers only the illusion of ultimate punishment.

As you may be aware, there has been significant movement away from the death penalty even in the past year, as demonstrated both in polling numbers that show a sharp drop in support, and in statements and actions from public officials.

Although six states have repealed their capital-punishment laws since 2007, prosecutors may still seek the death penalty in 32 states and in federal cases.  Yet governors in four of those states have taken executive action to place a hold on executions—most recently Pennsylvania’s newly-elected Governor Tom Wolf, who had pledged, as a candidate, to do so.  Many of the other 28 states currently have executions on hold pending state reviews, state litigation, or the Supreme Court’s decision later this year in Glossip v. Gross.

Glossip presents a challenge to the use of Oklahoma’s death-penalty drug “cocktail,” after three botched executions across the country in 2014.  Citing similar concerns, the governor of Ohio last month imposed a moratorium on use of the death penalty there for the remainder of 2015.  And just this past week, out-going U.S. Attorney General Eric Holder called for at least a temporary nationwide halt to all lethal injections.  Complications from the drugs currently used for lethal injection, which is the preferred method of administration in every capital-punishment state, are symbolic of the broken system that the BBA Working Group described.

The AG also expressed his concern about the possibility of the execution of an innocent person, which he called “inevitable,” echoing our Working Group.  Indeed, the steady drumbeat of news stories about prisoners being released from death row, upon findings that they were wrongfully convicted, has been another factor in changing public opinion.

We wrote in this space last summer about two North Carolina brothers who were exonerated after 30 years.  Since then, three men in Ohio had their murder convictions overturned nearly 40 years after a trial in which the prosecution’s case rested chiefly on the eyewitness testimony of a 12-year-old boy, who later recanted and was shown to have been elsewhere at the time.  This brings the confirmed total number of condemned prisoners who have been exonerated from death row to 150 in the past 42 years.

It is in this context that the trial of the accused Boston Marathon bomber begins at the Moakley Courthouse.  At the time of writing, jury selection has been underway for nearly seven weeks, and defense attorneys continue to pursue a change of venue.  Prosecutors from the US Attorney’s Office have said they will ask jurors to impose the death penalty.

Proceeding to a full trial with the death penalty as an option likely means many years of delays and appeals before a death sentence would be carried out, if ever. The BBA Working Group found that appeals last an average of 16 years, and that less than 1% of cases in which the DOJ seeks death actually result in execution.  Such delays would serve to keep the alleged bomber’s name in the news for the foreseeable future.

In the alternative, prosecutors could take the death penalty off the table and explore the possibility of a plea bargain that might result in a life-without-parole sentence.  There is certainly precedent for such an approach, including in the prosecutions of the so-called Unabomber and the accomplice to the Oklahoma City bombing—both of whom have largely disappeared from public notice since their sentencing.

Such an outcome would offer multiple benefits: The entire case could be concluded expeditiously and a definitive sentence imposed, allowing for closure and putting the focus back on continuing to help the victims, their families, and the city heal from this gut-wrenching tragedy.  What’s more, the trial could proceed directly to sentencing, with an opportunity for impact statements from victims and their families, who could confront the defendant and tell him directly how the crime profoundly affected them.

There is still time for the DOJ to seek a plea deal that would obviate the need for a trial and ensure that the defendant lives out his life in the obscurity of a federal super-max prison.  Just today, the nomination of current US Attorney Loretta Lynch to become the next Attorney General advanced to the Senate floor.  We hope that, once sworn in, she will take a fresh look at the case and agree with our suggested approach.

— Michael Avitzur
Government Relations Director
Boston Bar Association