The Feds Will Seek Death Penalty For Dzhokhar Tsarnaev. Here's Why They Might Not Get It.

Your News Companion by Ben Mathis-Lilley
Jan. 30 2014 2:46 PM

Feds Will Seek the Death Penalty For Dzhokhar. Here's Why It Probably Won't Get That Far.

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A photograph of suspect Dzhkokhar Tsarnaev is played on a television in a shopping center near the site of the Boston Marathon bombings on April 23, 2013 in Boston, Massachusetts

Photo by Mario Tama/Getty Images

Attorney General Eric Holder announced this afternoon that the U.S. government will seek the death penalty for Dzhokhar Tsarnaev, who is currently awaiting trial for last year's Boston bombings. "The nature of the conduct at issue and the resultant harm compel this decision," Holder said in a statement.

The decision comes more than nine months after the twin bombings at the Boston Marathon, and the ensuing manhunt that ultimately ended with Tsarnaev in custody and his older brother, Tamerlan, dead. It sets in motion the highest-profile federal death penalty case since Timothy McVeigh, who was executed for the 1995 Oklahoma City bombing.

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Still, there's a long way to go between today's announcement and Tsarnaev's potential execution. As the New York Times notes, only three people have been put to death by the U.S. government since the federal death penalty was reinstated in 1988. Meanwhile, in nearly half of such cases, prosecutors eventually withdraw the threat of capital punishment before trial, more often than not as part of a plea deal, according to the Federal Death Penalty Resource Counsel. Put simply: It typically doesn't make a lot of sense for the prosecution to give up its biggest bargaining chip now without getting something in return (read: a confession).

Also working in Tsarnaev's favor is his legal team, which includes Judy Clarke, a defense lawyer with an unmatched record of keeping high-profile public enemies off of death row. Her legal resume includes the defenses of Susan Smith, who drowned her two children in 1994; the Unabomber, Ted Kaczynski; Atlanta Olympics bomber Eric Rudolph; and most recently Jared Loughner. All received life sentences but were spared the death penalty. As the Daily Beast noted in a profile of Clarke last year, Clarke has previously quoted a fellow defense lawyer as once advising her, "The first step to losing a capital case is picking a jury." Chances are that's advice she'll look to follow this time, too.

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This post has been updated.

Josh Voorhees is a Slate senior writer. He lives in Iowa City.