When US Attorney General Eric Holder announced last week that federal prosecutors would seek the death penalty against 20-year-old Dzhokhar Tsarnaev — the surviving suspect allegedly behind the Boston bombings last April — news reports insinuated that the sentence might be likely, that Tsarnaev might be put to death.
But looking at Tsarnaev’s case in light of Timothy McVeigh — the last person in the US to be executed on federal terrorism charges in 2001 — it becomes harder to believe that the 20-year-old’s crimes will rise to the level of a capital offense. As one McVeigh expert put it simply to The Verge: "Tsarnaev is different."
‘He wouldn’t go away’
The stories of McVeigh and Tsarnaev have similarities. If the allegations against Tsarnaev are true, both he and McVeigh set off bombs at highly populated locations on United States soil, killing and wounding people. They both worked in secret, for months, with partners to produce those bombs. They were both charged under federal terrorism statutes for their crimes. Federal prosecutors in both cases decided death would be the only fair sentence if they were convicted.
But the two cases are also very different. For one thing, their crimes took place in very different times. When McVeigh drove a rented Ryder truck along NW Fifth Street in downtown Oklahoma City and lit a two-minute fuse that would detonate 5,000 pounds of explosives and kill 168 people, no one was standing idly by with an iPhone to inadvertently record his movements. In the hours following the explosion at 9:03AM on April 19th, 1995, there were no amateur investigators glued to Reddit, trying to determine what McVeigh looked like or where he might be. The manhunts were comparatively brief (McVeigh was arrested about an hour after the bombings). There were no high-profile misidentifications in McVeigh’s case.
Victims were relentless in pushing for McVeigh’s death
And when it comes to whether Tsarnaev might face death, another major difference is his relationship to his alleged victims.
Indiana University School of Law associate professor Jody Madeira is the author of Killing McVeigh: The Death Penalty and the Myth of Closure, which used 33 in-person interviews to deconstruct how Oklahoma City bombing victims reacted to McVeigh’s trial and execution. Madeira explains that victims play a huge role in whether an execution should occur. The victims in Boston, she says, seem to see Tsarnaev in a very different way than Oklahoma City’s victims saw McVeigh.
Victims were relentless in pushing for McVeigh’s death, she explains. In part, that was because his crimes were revolting. But it was also because McVeigh became such a widely quoted personality. He gave numerous media interviews and even participated in an authorized biography from behind bars. McVeigh, who was a 27-year-old Gulf War Army veteran at the time of the bombings, saw his actions as a rational response to, among other events, the 1993 federal siege of the Branch Davidian complex outside Waco, Texas, in which 83 people were killed. He would share his rationale for the Oklahoma City bombing — a rationale that he saw as a kind of war declaration — to anyone who would listen. The victims weren’t interested in McVeigh’s politics, though. Instead, they saw the public, ongoing defense of his actions as the worst imaginable kind of nuisance.
"There was this sense among the victims that McVeigh was just always there, right in front of them on television or in the newspaper," Madeira says. Oklahoma City bombing victims had "this involuntary relationship with McVeigh. These people wanted to silence him through execution." Madeira attributes McVeigh’s visibility as much to media structure in the mid- to late-1990s as she does to McVeigh himself.
"These people wanted to silence him through execution."
"The responsibilities of viewers were a lot different," she says. "When McVeigh’s trial was happening in 1997, most people didn’t rely on the internet for news. They would turn on the evening [television] news or flip open the paper and McVeigh was just always there. Today, if there’s a story I don’t like, I can avoid it. I can choose not to view the headlines. It wasn’t like that then."
For that reason, she says — combined with Dzhokhar Tsarnaev’s thus far nonexistent attempts to plead his case publicly — victims won’t feel as though they’re in an involuntary relationship with Tsarnaev; they’ll be less likely to relentlessly push for his execution.
"McVeigh was convicted of killing people and came across as someone who would just as soon kill you, too, if it would help his cause," she said. Tsarnaev’s Rolling Stone cover image, the fact that he’s been weirdly seen as some kind of heartthrob, and his extremely limited attempts to speak publicly about his case so far only add to the unlikelihood that a jury might take take prosecutors’ advice and order Tsarnaev’s death.
"He doesn’t look dangerous," Madeira says.
Participant vs. ringleader
In 1997, Aitan D. Goelman was one of the federal prosecutors assigned to put McVeigh on trial. McVeigh may have been the last person to be executed in a federal terrorism case, he says, but the Department of Justice (DOJ) has gone after the death penalty in multiple cases — related to terror and otherwise — since it reinstated the death penalty in 1988. Since then, only three executions, including McVeigh’s, have been carried out.
"In every case, it’s an uphill battle for federal prosecutors," he says. And in Boston that hill may be steeper than most. A September Boston Globe poll found that 57 percent of Bostonians favored a life sentence for Tsarnaev instead of the death penalty. It’s unlikely, in other words, that they’ll call for his death. And unless there’s a change of venue, federal prosecutors fighting for Tsarnaev’s death will select jurors from that pool.
On whether victims can influence a jury to opt for an execution, Goelman diverges from Madeira. The process is complicated, he says. While federal officials asked Boston bombing survivors to answer a questionnaire about their opinions on the death penalty, prosecutors’ choice to ask for an execution goes through a capital case review process, where officials meet and consider what might separate a case from the garden variety. Goelman points out that it took Attorney General Holder the better part of a year to announce that DOJ would seek the death penalty in Tsarnaev’s case.
"It’s an uphill battle for federal prosecutors."
"When it comes down to it, McVeigh and Tsarnaev are very different people with very different cases," Goelman says. Though conspiracy theories persist about cover-ups and ignored evidence in the Oklahoma City bombings, McVeigh presented himself as — and was prosecuted as — a mastermind. At trial, Goelman says, "McVeigh actually looked like he was enjoying himself." There’s little evidence to predict that Tsarnaev will act similarly. Goelman sees Tsarnaev as closer to Terry Nichols, McVeigh’s co-conspirator. Nichols helped McVeigh construct the massive bombs used in Oklahoma City, but he was at home in Kansas when the bombs went off. Nichols showed remorse and vulnerability at trial. Prosecutors asked that Nichols receive the death penalty, but he was sentenced to life in prison instead. He’s now serving the rest of his days on "Bomber’s Row" at the federal penitentiary in Florence, Colorado.
Goelman also compares Tsarnaev to Lee Boyd Malvo, the 17-year-old who partnered with John Allen Muhammad to carry out the Beltway sniper attacks. Though that wasn’t a federal case, the circumstances were similar: an older man guiding a younger man into mass murder. Muhammad was executed in Virginia in 2009; Malvo is serving six consecutive life sentences at Red Onion State Prison in Pound, Virginia.
"We’ll have to wait and find out how much of an independent actor [Tsarnaev] was," Goelman says. "Was he under the control of his older brother? Was he making decisions on his own? This may be a case of a young kid who was very much a participant rather than a ringleader."
The specter of 9/11
When Timothy McVeigh was executed, President George W. Bush gave a press conference announcing that a horrifying saga had finally concluded. "Today every living person who was hurt by the evil done in Oklahoma City can rest in the knowledge that there has been a reckoning," the president said. "Due process ruled. The case was proved. The verdict was calmly reached. And the rights of the accused were protected and observed to the full and to the end. Under the laws of our country, the matter is concluded."
Such statements almost seem quaint in retrospect. Three months after McVeigh was executed, 19 extremist Muslim terrorists crashed jets into the World Trade Center, the Pentagon, and a field outside Somerset, Pennsylvania. The war on terror was born, and along with it came not only a deepened, ongoing hatred of those who would launch attacks against innocent people on US soil, but also an added and persistent fear that the United States was under attack by extremist Muslims from all over the world. Though it can be argued that this fear of Muslims has subsided a bit, few would argue that it’s gone. And Dzhokhar Tsarnaev is Muslim. Among the evidence prosecutors undoubtedly plan to address at trial are messages he allegedly wrote inside the boat where he hid from swarms of police officers before his arrest. Among the messages: "We Muslims are one body, you hurt one you hurt us all."
Could his faith inspire a hatred among jurors to replace whatever lenience they offer his looks or his role as a mere participant? Madeira doesn’t think so. At this point, she says, it’s difficult to connect Tsarnaev "to al-Qaeda or any larger group."
That, too, could help keep Tsarnaev off death row. But as Goelman suggests: we’ll have to wait and find out.