In their battle to save Dzhokhar Tsarnaev’s life, his attorneys have stressed that should he be spared the death penalty, his life will be miserable anyway.
On Wednesday afternoon, however, government attorneys calling for Mr. Tsarnaev to be executed began to chip away at that argument.
A death penalty for the convicted Boston Marathon bomber would require unanimous consent from the jury. If just one juror holds out, he will instead be sent to the super maximum security prison in Florence, Colo. – the highest-security prison in the federal system, also known as ADX Florence or the “Alcatraz of the Rockies.”
A key part of the defense's arguments during the trial’s penalty phase has been that this sentence represents sufficient punishment for Tsarnaev. In his opening statement, defense attorney David Bruck showed the jury pictures of the prison covered in snow, portraying the facility as something closer to Siberia than to rural Colorado.
“This is where the government keeps other terrorists who used to be famous but aren’t anymore,” Mr. Bruck told the jury.
On Wednesday, the defense called Mark Bezy, a retired official with the Federal Bureau of Prisons, to testify. Mr. Bezy – who worked for the BOP for 28-1/2 years – was a warden of the federal death-row prison in Terre Haute, Ind., and helped set up ADX Florence when it opened in 1994. He described the prison’s special “H-Unit.”
The inmates of the H-Unit, Bezy explained, are subject to “special administrative measures” designed to restrict their communication with the outside world. Tsarnaev has been subject to SAMs since July 2013.
ADX, Bezy added, has “been deemed the most appropriate institution to house inmates under SAMs.”
“The policies and procedures [in the H-Unit] are effective," he said. "It works.”
ADX inmates get two 15-minute phone calls a month, he noted, and they’re allowed to call only immediate family members. Also, they can receive physical visits only from parents and siblings.
“What about friends?” Bruck asked in his examination.
“No,” Bezy answered.
SAM restrictions can be renewed every year by the US attorney general. Bruck asked Bezy whether Tsarnaev would remain at ADX if the government chose to not renew his SAM restrictions.
“In my opinion he would,” Bezy replied. “Basically, everybody knows who he is.”
On cross-examination, however, prosecutor Steven Mellin came out firing. He pointed out that Bezy never actually worked at ADX.
“I’ve been there quite a few times,” Bezy replied, adding that he’d toured the H-Unit a month ago.
Mr. Mellin also noted that prisoners can sue over their SAM restrictions, and he got Bezy to acknowledge that prisoners frequently come off SAMs and get assigned less restrictive measures through a “step-down process.”
“You know every year inmates come off SAMs?” Mellin asked him.
“It’s very possible,” replied a visibly flustered Bezy.
The “step-down” program has three phases, Bezy added, but he said there’s “no guarantee” an inmate will eventually get out of the H-Unit.
Mellin also raised the possibility that the SAM system could be discontinued while Tsarnaev, who is 21 years old, is still alive.
“You can’t predict how long a SAMs program will exist in the future?” Mellin asked.
“I'd say it's going to be there for a while,” Bezy replied.
Jurors paid close attention to the cross-examination, according to reporters in the room. If prosecutors are able to cast doubt on the permanence or the severity of a life sentence at ADX, it could strengthen their case for the death penalty.
Recent polls of Boston-area residents have found a growing number in favor of life in prison over the death penalty.
"There is no privacy. A camera will be trained on him 24 hours a day" in ADX, Bruck said during his opening statement last week. "There will be no autobiography, no execution date to bring him back into relevance."
On Wednesday afternoon, Mellin asked Bezy what else H-Unit inmates can expect to receive.
"Even at ADX, inmates get books and magazines, correct?" he asked.
"Yes," Bezy replied.
"They can receive communications?"
Before a frustrated Bezy could reply, the defense objected. The attorneys were then called into a sidebar conference with the judge before the day's testimony was ordered to a close. Bezy will take the stand again Thursday morning.