A jury in Boston sentenced Dzhokhar Tsarnaev to death on Friday, but it will be years before he faces an execution, if he faces one at all.
After a formal sentencing hearing, Tsarnaev will be taken to federal death row in Terre Haute, Indiana, to wait out years of appeals. Oklahoma City bomber Timothy McVeigh gave up his appeals, but still spent four years waiting to be executed. The other two recent federal lethal injections, of Louis Jones and Juan Paul Garza, each took eight years from trial to execution.
But there are new factors that might make Tsarnaev’s execution take even longer.
Since 2010, the federal government has been unable to carry out executions, creating a de facto moratorium, and the reason may read as familiar; the federal government has had the same problems finding lethal injection drugs as many state prison systems. They still have not formalized a new lethal injection protocol.
The scant bits of public information about federal lethal injections — which shed light on the possibilities surrounding Tsarnaev’s fate — can be found in the court records of an obscure murderer named James Roane, Jr.
In 1993, 26-year-old Roane was sentenced to death for murders connected to a large smuggling operation. In 2005, his attorney and several others sued the federal government, arguing that their three-drug cocktail — the same one used by virtually every executing state — amounted to cruel and unusual punishment. The lawsuit was still unresolved by 2011, when federal prosecutors told the judge they could no longer obtain one of those drugs, sodium thiopental.
It’s the same story that has been widely reported in various states, most recently in Jeffrey Stern’s cover story for The Atlantic this week.
The judge in Roane’s case ordered federal prosecutors to provide status reports on their efforts to secure a protocol. “The Department of Justice and the Bureau are currently engaged in a review of the protocol,” reads the latest status report, dated May 1, 2015. “This assessment is ongoing, and no final determinations have been made as to specific changes to the protocol.”
“They’ve been working on it for a while now,” says Roane’s attorney, Paul Enzinna. “That’s the sum total of all I know.”
Since Tsarnaev’s appeals will likely take years, his fate — and the fate of all federal death row prisoners — depends on whether the federal government finds a protocol. And how hard they are trying now and will continue to try are unknown. Recently departed Attorney General Eric Holder, whose office oversees federal prosecutions, publicly expressed his opposition to the death penalty (even as his staffers secured Tsarnaev’s death sentence). His successor, Loretta Lynch, says execution is sometimes “fitting punishment.”
Last year, Barack Obama indicated that the federal government might reevaluate its policy on the death penalty in the wake of a grisly botched execution in Oklahoma. Tsarnaev’s appeals will likely run out during a future presidential administration.