Tsarnaev – Marathon suspect : Death penalty unconstitutional

Lawyers for Boston Marathon bombing suspect Dzhokhar Tsarnaev asked a judge on Wednesday to declare the federal death penalty unconstitutional, citing recent bungled executions in Ohio and Oklahoma and arguing there’s mounting evidence innocent people have been executed.

The six-page motion was filed by David Bruck and Judy Clarke, death penalty experts on Tsarnaev’s defense team. Federal prosecutors said they would seek the death penalty if Tsarnaev is convicted of the April 15, 2013 attack that killed three people and injured more than 260 others.

Bruck said the Federal Death Penalty Act violates the Fifth Amendment and Eighth Amendment of the U.S. Constitution.

“The FDPA violates the Eighth Amendment because, as manifested by its seemingly ineradicable pattern of racially disparate enforcement and the risk it poses of executing innocent people, the death penalty constitutes cruel and unusual punishment,” Bruck wrote.

Bruck conceded that the court had rejected these arguments in 2007 during Gary Lee Sampson’s appeal of his death penalty conviction, but said new developments should be noted. Among those circumstances was the “public and worldwide revulsion over the recurring spectacle of botched executions,” including that of Lockett, who had a heart attack after a failed execution by lethal injection in Oklahoma.

Massachusetts’ ban on the death penalty should also weigh on the statute’s constitutionality.

“The importance of respecting the primacy of state authority in criminal law has particular resonance where the federal government seeks to impose the death penalty in a state that has rejected it,” Bruck wrote, adding later. “(T)he Eighth Amendment prohibits the application of the death penalty because the death penalty is not authorized under Massachusetts law, and is therefore unusual in the constitutional sense.”

Agencies/Canadajournal