Executing the Boston Bomber? Not So Fast

Dzhokhar Tsarnaev has been sentenced to death by lethal injection for his role in the 2013 attack on the Boston Marathon that killed three people and injured 264. Reuters

A jury in Boston sentenced Dzhokhar Tsarnaev to death last Friday, but it will be years before he faces an execution, if he faces one at all.

After the formal sentencing hearing, Tsarnaev was expected to 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 Raul 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. It still has 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 recent cover story for The Atlantic.

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, President 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.

Maurice Chammah is a Marshall Project staff writer, based in Austin, Texas.

This article was originally published by The Marshall Project, a nonprofit news organization focused on the U.S. criminal justice system. You can sign up for its newsletter or follow The Marshall Project on Facebook or Twitter.