Dzhokhar Tsarnaev, the alleged Boston Marathon bomber, stands accused of terrorism. And terrorism, according to federal law, is a heinous crime worthy of the death penalty.
But if Tsarnaev is indeed convicted and executed, he will be the exception, not the rule. At least 14 times since 1993, federal prosecutors have sought the death penalty for an accused terrorist, as they are doing now. In many of those cases, as in this one, the crime involved was horrific and nationally publicized.
But only once was the defendant actually executed: Timothy McVeigh, the Oklahoma City bomber, in 2001.
There are a few reasons why this is true. For starters, terrorism cases are handled at the federal level, where the death penalty is much less common. Since 1976, only three people have been executed under federal law; at the state level, the toll is over 1,300.
Until 1994, federal statutes made the death penalty available for a limited range of crimes — not including terrorism. The 1993 truck bombing of the World Trade Center helped change that. Six men were tried and convicted for the attack, including Ramzi Yousef, who famously proclaimed in open court, “Yes, I am a terrorist and proud of it...” Yet the death penalty was not available because the bombing happened a year before the passage of the Federal Death Penalty Act of 1994, a law that greatly expanded the number of federal crimes considered “capital.” Instead, Judge Kevin Thomas Duffy sentenced each of the men to 240 years in prison, a number he arrived at by adding up the life expectancies of those who had died in the attack.
About two thirds of federal terrorism cases are resolved through plea bargaining — an option that may be under consideration in the Tsarnaev case. Often, prosecutors offer a plea deal to avoid the excessive time and cost of a trial, especially a high-profile one, and the subsequent appeals. Or they may want to spare the victims from having to relive the attack and prevent the defendant from receiving more fame and attention. Or they may not want to rely on a jury’s willingness to hand down a death sentence.
Either way, the result is the same: Though their crimes hold a fearsome place in the national psyche, defendants like Tsarnaev don't end up getting the death penalty.
The Antiterrorism and Effective Death Penalty Act of 1996, a response to the World Trade Center bombing and the 1995 Oklahoma City bombing, was an attempt to make an actual execution more likely in federal terrorism cases. Among other provisions, the law banned "second or successive" habeas corpus petitions by federal terrorism defendants, ensuring that those sentenced to death for terrorism wouldn't be able to make endless appeals.
But since the law was passed, only McVeigh has been executed. His accomplice, Terry Nichols, barely escaped the death penalty, because two juries – one federal and one state – deadlocked on the question of sentencing.
In 1998, Ted Kaczynski, also known as the Unabomber, faced the very real possibility of a death sentence. As Attorney General Eric Holder has done in the Tsarnaev case, then-Attorney General Janet Reno authorized the prosecution to seek the death penalty. And when Kaczynski's lead defense attorney, Judy Clarke – who is now representing Tsarnaev – tried to get the death penalty off the table by entering an insanity plea, the defendant rejected the idea.
Several months into the proceedings, Kaczynski asked to represent himself, agreeing to undergo a psychiatric evaluation. When the court-appointed psychiatrist diagnosed him with paranoid schizophrenia, prosecutors were given political cover to offer a plea deal that would spare his life. They were less likely to be blamed for not trying to put to death a mentally ill man. Kaczynski was sentenced to life in prison – on “Bombers’ Row” at ADX Florence in Colorado, the same facility where five of the six World Trade Center bombers were being held.
In 2005, Eric Rudolph, who was responsible for the 1996 bombing at the Atlanta Olympics as well as a series of abortion clinic bombings, also seemed to be facing the death penalty. Attorney General John Ashcroft had indicated that he wanted a high-profile terrorism case to end in an execution.
But in the months leading up to the trial, Ashcroft resigned and was replaced by Alberto Gonzales, who was less gung ho about the death penalty. Gonzales said he didn't want to make Rudolph a martyr.
After Rudolph was offered a plea, he issued this statement: “The fact that I have entered an agreement with the government is purely a tactical choice on my part."
He, too, was sent off to ADX Florence.
David Coleman Headley, the American behind the 2008 terrorist attacks in Mumbai, was another candidate for the death penalty. At least 166 people were killed in that event, including six Americans.
But in return for pleading guilty and cooperating with the investigation (Headley was an on-again off-again DEA and FBI terrorism informant), he was sentenced to only 35 years.
Meanwhile, some federal terrorism suspects who escape the worst punishment do so by other means, including by a jury verdict. Many American juries simply will not endorse the death penalty, no matter the heinousness of the crime -- which is another reason for the speculation that Tsarnaev's prosecutors might forego trial.
Zacarias Moussaoui, convicted of helping to plot the September 11 attacks, wasn’t offered a plea deal. But, in May 2006, a jury voted 11-1, 10-2, 10-2 in favor of giving him the death penalty; for him to be put to death, the jury had to come to a unanimous verdict on one of the counts. Moussaoui escaped death row by a single juror. He was sentenced to six consecutive life terms without parole.
And Khalid Sheikh Mohammed, the accused terrorist mastermind who has been confined at the Guantanamo Bay detention facility since 2006, has managed to avoid being put to death by avoiding being tried altogether. First, there was a dispute about where his trial would be held: Holder and President Obama wanted him tried in New York, as a civilian, while Congress insisted he be tried at Guantanamo, by the military. Now, his trial is delayed in part because prosecutors are concerned they won't be able to convict him -- because so much of the evidence against him was questionably obtained, through "enhanced interrogation methods."
