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If Tsarnaev gets death penalty, will extremists promote it as martyrdom?

NYPD's Deputy Commissioner of Intelligence and Counterterrorism John Miller joins "CBS This Morning"
NYPD's John Miller on Tsarnaev's possible death penalty, SC police shooting 05:41

As Boston Marathon bomber Dzhokhar Tsarnaev faces the penalty phase of his trial, victims' families, survivors and the public are voicing their opinions on whether the 21-year-old should be sentenced to death or life in prison.

"One of the things they raised in the paper today is, don't give him what he wants. ... I would be less concerned with what Tsarnaev wants. I would be concerned with what that might mean to groups like ISIS and al Qaeda who would use that to promote his martyrdom for the cause," said John Miller, the deputy commissioner of intelligence and counterterrorism for the New York City Police Department.

The jury found Tsarnaev guilty of all 30 charges Wednesday, 17 of which were punishable by death.

Ultimately, Miller said the judge will tell the jury to follow the standard of the law.

"I think at the end of it, what they're going to act on is a legal instruction, but I think you can't go into the penalty phase in a death case and not make a somewhat emotional decision," Miller said.

Juries around the country have not always sent convicted terrorists like Tsarnaev to death row.

"If you look at Timothy McVeigh in Oklahoma City, that was a trial in Denver, not Oklahoma City, where he was sentenced to death," Miller said. "On the other hand, if you look at Osama bin Laden's crew that blew up the embassies in East Africa on his orders, they were convicted in a federal trial in New York, and at the death penalty phase, the jury here spared them."

Despite the fact that both the terror attack and trial took place in Boston, a death penalty sentence isn't a foregone conclusion.

"The other part of it is that juries in the United States are still somewhat tentative about the death penalty."

A 2013 poll by the Boston Globe found that 57 percent of the city's residents favored a life sentence for Tsarnaev, as opposed to 33 percent in favor of death.

Elizabeth Warren: Tsarnaev "should die in prison" 07:59

Massachusetts Sen. Elizabeth Warren is vocal opponent of the death penalty.

"My heart goes out to the families here, but I don't support the death penalty," Warren said Thursday on "CBS This Morning." "I think that he should spend his life in jail. No possibility of parole. He should die in prison. But that's how I see it. It will be up to the jury."

She said in prison, he will not be a danger or "keep sucking up a lot of energy and a lot of attention."

"The point is that he stays in prison, he dies in prison, he's put away. ... The families need their chance to heal, to move on beyond this, and I think that's what really matters most," Warren said.

This is a step towards justice, she said.

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