Boston Bomber Sentencing: Hank Brennan, Boston Legal Scholar, Explains the Death Penalty Phase

Dzhokhar Tsarnaev is set to begin the sentencing phase of his trial. To understand the jury's responsibilities, Hank Brennan, former Boston prosecutor and current defense attorney in the appeal for notorious mobster James "Whitey" Bulger agreed to explain.

Federal Death Penalty Act

The next phase of the United States v. Dzhokhar Tsarnaev trial is what is commonly called the "death penalty phase." In Federal Court the procedure has been codified and is known as the Federal Death Penalty Act (FDPA). This statue can be found at U.S. Code Title 18, Part II c.228.  

The jury will consider both aggravating and mitigating circumstances relative to the qualifying convictions.

A qualifying conviction is an indictment (often called a charge) that the defendant was found guilty for which qualifies for the penalty of death. Not all convictions qualify for the death penalty.  

The prosecution will call witnesses, primarily victims or family members of victims.  The witnesses have an opportunity to emote and may testify to the impact inflicted upon them by the defendant's acts or they may read pre-written impact statements describing the physical, emotional, and financial impact caused by the defendant's crimes.

The defense may also introduce witnesses to attempt to demonstrate any relevant mitigating factor on behalf of the defendant. After considering the evidence the jury decides whether death should be imposed. If the jury chooses that death should not be imposed, the judge will impose a sentence that will inevitably be a life sentence without parole.  

Aggravating and Mitigating Factors

Aggravating and Mitigating Factors are found in U.S. Code Title 18, Part II c.228  § 3592.

Mitigating factors include impaired capacity, duress, being a minor participant, no prior criminal record, equally or more culpable co-defendant, and other factors including the defendant's past character.  

Aggravating factors are numerous and include whether death occurred during the commission of another crime, a grave risk of death to additional persons, if the offense was committed in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim, substantial planning and premeditation to cause the death of a person or commit an act of terrorism, the particular vulnerability of the victim due to old age, youth, or infirmity, and whether the defendant intentionally killed or attempted to kill more than one person in a single criminal episode.

Jury Determines Aggravating and Mitigating Factors

The jury's must return special finding identifying any aggravating factors. All jurors must unanimously agree for any aggravating factor to be deemed established.

A finding of any mitigating factor, however, may be made by 1 or more members of the jury. Upon a finding of a mitigating factor by at least one member of the jury, the factor is deemed established.

The jury will consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. The jury will then recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

A recommendation to sentence to death must be by a unanimous vote.

Haute Tease

  • Crave Review – Bizarrely Interesting In Moderation

    “Crave,” from Another Green World Productions and Phase4Films, presents a psychotic thriller, a pulp fiction fantasy ride into the mean crime filled streets of Detroit, deviling deep into the actions that arise from suppressed addictions.

     
  • Money News: Big Giving for Small Nonprofits: How to Leave Your Legacy with Impact

    While no one likes reminders of their mortality, there are some decisions that you can make today that will leave a lasting good long after your time on Earth. One of the most important steps you can take now is to choose a smaller, community-based organization to gift a portion of your remaining assets.

     
  • And the Oscar for Best Documentary Short Film Goes To . . .

    Documentary films bring the world into our living rooms, we are treated to lands, times, events that we would never see, astonished at stories of overcoming obstacles and provide clarity into our own situations, they provide a looking glass into another's life, dreams, survival, hope and heart.

     
  • How To Tell Skincare Hero’s From Skincare Zero’s

    The billion dollar beauty industry is built on promises and dreams. Skincare cosmetic giants promise glowing, healthy, vibrant, skin, and the consumer with dreams of tightening, firming, restoring, passionately reads the promises and purchases the key that provides the possibility.

     
  • Hungarian Parliament Declares State of Migration Emergency

    Hungarian Parliament passed a law last week that gave the government the right to declare a state of migration emergency to cope with the tens of thousands of refugees crossing the border which bring military and legal powers to police.

     
  • Luxe Therapy Hair Essentials - A Game Changer For Haircare

    LOS ANGELES, CA (May 8, 2013): Luxe Therapy Hair Essentials and Nicole Ari Parker's Save Your Do have joined forces to offer tools to women that aid and abet in maintaining not only your hair's style but the health of both your hair and scalp. After meeting at the Spectrum International Beauty Expo in March the entrepreneurs Crystal Haynes and Nicole Ari Parker were mutually impressed with each other’s beauty solutions and decided to collaborate.