With the constitutional debate on the death penalty now back on, I want to make an observation about that punishment that flows from the recently completed Boston Marathon bomber trial.
It seems to me that the DOJ’s decision to seek the death penalty in a state that does not have capital punishment sets a precedent that could undermine that regime nationwide. Suppose you’re in a state that is thinking about getting rid of the death penalty. A good reply to that idea is that every once in a while there is a really heinous crime that merits a death sentence. (The alleged killer in Charleston comes to mind. So does Timothy McVeigh).
Not a problem, an abolitionist can say. The DOJ will seek the death penalty in such a case. In a really terrible crime, some ground of federal jurisdiction can be found. In effect, states can just free ride on the federal government for “the worst of the worst” cases.” No need to maintain the expense of state death row, post-conviction review, or an execution method.
Not all states will feel this way, of course. Some will say that the DOJ will not seek the death penalty often enough. Or they might say that there can be horrible killers who would not trigger federal jurisdiction somehow. My point, though, is that many states that have the death penalty but use it rarely might conclude that the DOJ can be safely entrusted with this discretion. I wonder if we will see that argument made more often in the coming years.