What Death Penalty Laws Are Like In Massachusetts

Now that Dzhokhar Tsarnaev has been found guilty of 30 criminal charges stemming from his involvement in the Boston bombing, 17 of which warrant a potential death sentence, he is literally facing a life or death situation. The guilt phase of his hearing ended with the delivery of the guilty verdict, but the sentencing phase has yet to begin. Tsarnaev only has two potential sentences: life in prison without the possibility of parole, or Tsarnaev will receive the death penalty. Who will make this decision, and how will they make it? What are the guidelines for sentencing someone to death rather than life without parole?

The standards for sentencing vary across the country. The United States Supreme Court ruled that the death penalty was unconstitutional in Furman v. Georgia (1972) because the standards for applying it lacked consistency, and it was assigned too arbitrarily. That is to say, it was essentially a matter of chance who received the death penalty and who got life in prison — there was no system for selecting a punishment. Four years later, in 1976, the Supreme Court ruled in Gregg v. Georgia that the death penalty was constitutional if applied with guided discretion from a judge. What does that mean for the jury?

How Does The Jury Decide?

For a jury tasked with deciding someone's life-or-death fate, there have to be guidelines handed down to the jurors from the court — otherwise, the jurors could go back and forth forever, arguing emotional appeals with each other. Having guided discretion means having certain rules within a state's death penalty statute that limit the number of people who can be sentenced to death. Every state that allows the death penalty has these guided discretion rules. For states, the death penalty is only valid for murder, no other crimes. For each state that allows executions, these rules fall into two main categories: aggravating factors and mitigating factors.

What Makes A Murder Especially Bad?

Aggravating factors are things about the crime that make it especially bad. Common aggravating factors include torture, committing murder in the course of committing another felony, and killing a police officer or child. Many states allow the death penalty for crimes that are especially "heinous, atrocious or cruel," or "outrageously and wantonly vile, horrible or inhuman." This means jurors are allowed to decide whether a murder is so especially terrible and cruel that it violates all sense of humanity. That's pretty broad discretion for a bunch of average citizens to decide.

Mitigating factors are things about the crime that might make the jury feel softer towards the defendant. Usually, these factors have to do with the defendant's background, and they try to make him or her appear less culpable of the crime. These can vary widely. Common mitigating factors include evidence of an abusive childhood, lack of intention to commit murder, or extreme emotional distress.

So what does all this have to do with Tsarnaev? It has everything to do with Tsarnaev. Since his case is a federal one and not a state case, he will be sentenced according to federal death penalty statutes. Interestingly, Massachusetts, where the bombing took place, does not allow the death penalty. Even though the state doesn't have a death penalty law, the federal law still applies to Tsarnaev's case.

Tsarnaev's Jury

What's really interesting about this case — besides the intensely public nature of the crime and all the media attention — is the fact that Tsarnaev's fate will be decided by the same jury that convicted him. In many states, defendants have bifurcated trials — that means that one jury convicts them, and then a new, fresh jury decides their sentence. But the federal government also ruled that it's OK to have unitary trials, where the same jury makes both decisions. What's the reason for doing this? Here's what the Supreme Court said in their decision:

The Constitution does not prohibit the States from considering that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment resolved in a single trial.

The reason not to have the same jury decide everything is because there might be concern that the jury is biased towards giving the death penalty because they already ruled the defendant is guilty. But the Supreme Court said the "compassionate" purpose of a secondary jury can also be served by the same jury that convicted the defendant.

Tsarnaev's Sentence

Ultimately, what does this all mean for Tsarnaev? Will he be sentenced to death or life? In order to decide on the death sentence, the jury must find that the aggravating factors in his case outweigh the mitigating factors, and there's no mathematical formula for that. They'll have to figure it out together. But you can consider the factors yourself.

Aggravating Factors

The prosecution will talk about the following things in sentencing that make Tsarnaev look especially bad:

• intentional killing and injuring
• creating a risk of death for multiple people
• premeditation
• the "heinous, cruel and depraved" aspect of the crimes

They will also likely talk about Tsarnaev's encouragement to others to do similar crimes, the lifelong impact on his hundreds of victims, and his apparently total lack of remorse.

Mitigating Factors

The death penalty is supposed to be reserved for the worst of the worst offenders — that's the point of the whole guided discretion thing. Tsarnaev's lawyers will argue that he's not the worst of the worst because his brother convinced him to carry out the bombings. They'll also cite these mitigating factors:

• no prior criminal record
• being the secondary participant
• difficulty adjusting to American life as an immigrant

We can expect the hearing to begin as early as next week.

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