On May 15, we learned that a Boston federal jury had returned a penalty verdict of death for Dzhokhar Tsarnaev, who with his older brother Tamerlan was convicted of the Boston Marathon bombings. Certainly the crimes of Tsarnaev and his elder brother, who was killed in a shootout with police four days later, were horrible. The two bombs near the finish line at the Marathon killed three people and maimed hundreds. The horrible wounds and amputations inflicted and the spectacle of the most powerful government in the world attempting to execute a boy who was only 19 at the time of the crimes, have aroused special emotion. However, we must remember that the main issue here is the death penalty itself, and the harm and trauma it inflicts on all it touches, like those bombs.
Governor Martin O’Malley of Maryland, who played an instrumental leadership role in his state’s abolition of the death penalty in 2013, offered some comments about the Tsarnaev verdict that show us how to move forward. Expressing respect for the jury, and offering his prayers for the victims and their families, he focused both on the needs of victims and on the death penalty as a violation of human rights. Before considering Governor O’Malley’s points about harm to victims and human rights, let’s address an issue that grows out of his reminder that the jurors themselves deserve our respect: the way that the death penalty puts these jurors in an unfair position and harms them also.
1. Cruel and unusual punishment — for the jurors
First, we should consider that the jurors were unable to adequately represent their community and became victims of a bad system. Massachusetts itself is a strongly abolitionist state, with the last execution in 1947 and abolition in 1984. In Boston, this sentiment is even stronger, with only 25 percent of those polled favoring the death penalty in any case, and only 15 percent for Tsarnaev.
However, Tsarnaev was prosecuted under the Federal Death Penalty Act of 1994, meaning the judge could exclude anyone unwilling to vote for capital punishment. A jury so selected simply could not represent the conscience of the community against whom the bombings had been directed. Nor is this problem new in Massachusetts. A minority report of a Committee on Capital Punishment of the State’s House of Representatives, in 1848, observed:
“In Massachusetts, there is notoriously an increasing disinclination to convict, even though jurors are _packed_ as they are, by a most cruel policy, against the prisoner. In the present state of public feeling, every man who has scruples about capital punishment being of course excluded from the jury, and all of humane feelings avoiding, if possible, sitting on a capital case, jurors in capital trials are almost necessarily made up of the hard-hearted — those who have almost prejudged the case; and yet, even in Massachusetts, either through the partiality of the jury, or the clemency of the executive, it is some years since the death-penalty has been inflicted.”
Given the thankless task of speaking for a community they could not truly represent, the jurors were traumatized in two special ways. First, they were asked by the prosecution to overcome their natural instinct against killing, a process which can do immense and enduring psychological harm. Secondly, while any murder trial with its autopsy reports and reliving of gruesome and tragic scenes must be an ordeal for jurors, the logic of the death penalty here made it even worse.
To overcome the reluctance of the jurors to kill a teenager who had no previous criminal record, and since his arrest had been a peaceful prisoner, the prosecution saturated both phases of the trial with gory images, videos, and detailed medical testimony about the effects of the bombs on the victims. This went far beyond the evidence needed to prove the crimes and demonstrate the horrible nature of these explosive devices with their nails and shrapnel.
Without the death penalty, a trial of Tsarnaev in either state or federal court would have been faster and simpler. The prosecution would have produced overwhelming evidence of the defendant’s liability for all four murders, either directly or by aiding and abetting his brother, and the jury would have found him guilty as charged. He would have been sentenced to life without parole (LWOP) — case closed!
2. Cruel and unusual punishment — for the victims
As Governor O’Malley pointed out, “the appeals process is expensive and cruel to the surviving family members.” He knows well, because murder survivors were central both to abolition in Maryland, and in the subsequent effort fulfilling the Governor’s promise that funds saved by abolition would be directed to victims services.
After Tsarnaev was convicted in April of the four murders, some of the victims spoke publicly in favor of dropping the death penalty and negotiating a plea agreement to give him LWOP. Most memorably, the family of Martin Richard wrote the Boston Globe to ask that the legal process end without years of death penalty appeals, which would place Tsarnaev in the limelight to reopen their wounds.
Murder survivors with various views on the death penalty itself have drawn the same conclusion either about their own personal needs, or more broadly about what policy is in the interest of victims generally. Thus the family of Matthew Shepard, a young gay man murdered in Wyoming in 1998, preferred a plea agreement for LWOP with no appeals as best meeting their desires for healing, although they are not opposed to the death penalty. Victim and advocate Kathy Garcia is not opposed in principle to capital punishment, but has championed its abolition in States such as New Jersey (2007) and Illinois (2011) because of the immense harm she has seen it do to victims.
Many other survivors, of course, are against the death penalty in principle; but this is an area where people with different views can unite in seeing that LWOP is a better practical solution to give the Richard family and others in their situation a space for privacy, dignity, and healing.
Although the wishes of the Richard family were not followed, President Obama could step in and end their ordeal of being trapped in years of appeals and publicity for Tsarnaev.
Prosecutors argued that, if sentenced to LWOP, Tsarnaev might have his conditions of confinement eased over the years. However, under the Supreme Court decision in Schick v. Reed (1974), the President has the power to modify a death sentence to life on any terms. Within the limits of the Eighth Amendment, it appears that President Obama has virtually unlimited discretion in setting the terms of the LWOP sentence that would replace the death penalty.
Also, federal funds saved by not pursuing years of appeals could be directed to assisting the victims of the bombings, many of whom have ongoing medical issues and dilemmas. That would be a worthy national response to this saga of tragedy and community resilience.
3. Human rights: The company we keep
Governor O’Malley also reminded us that the death penalty for Tsarnaev puts us in the company of the other nations where “the vast majority” of executions happen: North Korea, Iran, Iraq, Yemen, and China. One might add Saudi Arabia; and also the Islamic State as a reminder of how legal or extrajudicial executions are a hallmark of precisely the terrorism that we seek to counter.
In the course of his remarks, the Governor offered a familiar truth applying to capital crimes generally: “The death penalty is ineffective as a deterrent.” However, that truth applies with special force to terrorist crimes, where the terrorists may either themselves seek death, or may be ready to die if they are unable to escape.
In our imperfect world, although we may be unable totally to abolish murder and terrorism, we do have the power both drastically to reduce their frequency and to limit their moral domain. Let the killing of subdued prisoners be a trademark of tyrants and terrorists, as opposed to responsible governments.
Margo Schulter was born in Los Angeles in 1950 and became a committed death penalty abolitionist shortly after the execution of Caryl Chessman in 1960. Since 1977, as a non-attorney, she has taken a special interest in legal and constitutional issues concerning the death penalty, with an emphasis on historical aspects. From time to time, she guest blogs for DPF.