Possible Death Penalty for Boston Marathon Bomber.
BANFIELD: "Crime and Punishment" time. Huge crime and possibly the ultimate punishment. We should be finding out by tomorrow whether the feds are going to seek the death penalty against the Boston Marathon bombing suspect Dzhokhar Tsarnaev. He and his older brother, Tamerlan, allegedly set off two pressure cooker bombs near the finish line of the storied race last April. Three people were killed, and three days later the brothers allegedly killed an MIT police officer in his own patrol car. Tamerlan Tsarnaev was killed in a shootout with the police, but left behind was Dzhokhar. And what do we do with him? Back to my lawyers, Mark O'Mara, Joey Jackson. Both join me again live. The decision belongs to the U.S. Attorney Eric Holder. The deadline is for tomorrow for Mr. Holder to decide whether or not the feds will go after a death penalty. There is so much emotion in this case.</s>JACKSON: Oh, yes.</s>BANFIELD: This Tsarnaev fellow is not some guy from a state you've never been to who committed a crime you never heard of. This is an alleged terrorist. And this is the Boston Marathon. Does all of that emotion factor into this?</s>O'MARA: Definitely. Partly, a political decision as well as a rational one. DOJ has a procedure in place where they have to look at certain criteria to determine whether or not death should be sought. Prior criminal record, the age, whether or not he was under the influence of somebody else, whether or not it was premeditated. Obviously, this was. So Holder's going to look at this and try and decide whether or not it fits the criteria. I think overall it does. And I think there's no reason not to seek death on a terrorist who tried to destroy the Boston Marathon.</s>BANFIELD: Joey, ironically, some people support the death penalty even when they don't support the death penalty because it's awesome leverage. It's awesome leverage to hold it over some guy's head to say you wanted to strike a plea with me and spare us the trial costs and all the rest, go away for the rest of your life in return for your life.</s>JACKSON: That's right.</s>BANFIELD: Ultimately, you never have to actually prosecute and use the death penalty. Do you think that's a possibility?</s>JACKSON: It certainly is. Everything's on the table. This affected so many people, it affected our country and certainly to mark's point, after weighing those factors as the Department of Justice will do, what's the downside? We should also discuss the fact that there's only been three executions when the federal government has pursued the death penalty since 1976, when the death penalty was reinstated. Therefore, it's a very weighty decision. At the end of the day, all the factors are here. To the extent this caused what it did cause, I think even though Holder does not personally agree with the death penalty, he has shown in instances where it's appropriate he will apply it.</s>BANFIELD: By the way, just quickly, we have a drug problem in this country, execution drug problem.</s>JACKSON: Yes.</s>BANFIELD: Do you think that might at all factor into this decision real quick?</s>O'MARA: You know, it could have some concern. We have to figure out a way to kill people right. I don't think that's a good idea.</s>BANFIELD: That's harsh, right?</s>O'MARA: I don't like the death penalty. It doesn't work.</s>O'MARA: But other than that --</s>JACKSON: It's just interesting, Ashleigh, that we're debating a humane way to apply the death penalty.</s>BANFIELD: Yep.</s>JACKSON: And I think though because of the Eighth Amendment and the fact the way it's applied could be considered cruel and unusual, it's an issue that's not going away.</s>BANFIELD: Mark O'Mara, Joey Jackson, always good to hear from you. Brilliant minds and brilliant thoughts. Thank you for that. Thanks for all for watching. CNN NEWSROOM continues now.