How should we think about whether Boston Marathon bomber Dzhokhar Tsarnaev deserves the death penalty?
Perhaps you oppose the death penalty in all cases, on the grounds that state-sanctioned homicide is wrong, that it diminishes the moral authority of the state and its citizens. As Pope John Paul II said in 1999, expressing the teaching of the Catholic Church on capital punishment, “the dignity of human life must never be taken away, even in the case of someone who has done great evil.”
If you share that view, Tsarnaev’s fate does not pose a conundrum: He should serve life in prison without the possibility of parole.
But perhaps, like me, your moral qualms are not so absolute; you believe that some crimes may be so heinous as to deserve the ultimate punishment. Perhaps, then, your opposition to the death penalty centers on its faulty application, not its clear-cut moral impermissibility. In this case, your concerns are less like those of the pope and more like those expressed in 1994 by the late Justice Harry Blackmun, when he declared, “From this day forward, I no longer shall tinker with the machinery of death.”
Blackmun’s concerns cannot be dismissed — now even more than in 1994, because the development of DNA evidence has raised the horrifying reality that the government has executed innocent people. Indeed, even without DNA evidence, the death penalty in practice is far more gruesome, far more morally questionable, than the death penalty in theory.
It is, too often, imposed on individuals who lack adequate legal representation. The poor are more likely to receive a death sentence than the well-off, African-Americans more than whites, African-Americans who murder whites more than African-Americans who murder someone of the same race.
Former Virginia Attorney General Mark Earley, a Republican, arrived at a similar conclusion after overseeing the executions of 36 people from 1998 to 2001. Writing in the University of Richmond Law Review last month, Earley said that capital punishment “is based on a false utopian premise” of complete accuracy and confidence “that the imposition of the death penalty will always be applied fairly, without bias, discrimination, public corruption, or incompetence.”
But here’s the problem with these powerful arguments against the death penalty in general — they don’t apply to Tsarnaev in particular. There is a legitimate debate about his degree of culpability in comparison to his older brother — a subject that will be a focus of the sentencing phase of the trial. But there is no doubt about his guilt; that was conceded during the main trial.
Likewise, concerns about the uneven, racially tinged application of the death penalty and the failure to provide adequate legal counsel are similarly irrelevant in Tsarnaev’s case. His lawyer, Judy Clarke, a former federal public defender, has extensive experience representing capital defendants — among them Unabomber Ted Kaczynski, Tucson shooter Jared Loughner, Atlanta Olympics bomber Eric Rudolph, and Susan Smith, the South Carolina woman who killed her two children. None received the death penalty.
Should Tsarnaev? After all, he was just 19. He had no criminal record. He may have been under Tamerlan Tsarnaev’s sway. But the heinousness and premeditation of the crime; the impact on the victims, not just those who died but those whose lives were forever altered; Dzhokhar Tsarnaev’s seeming lack of remorse — all suggest this would be an appropriate case for the death penalty, if you allow for that possibility.
Several of Tsarnaev’s victims have presented poignant arguments, moral and practical, against executing him.
Jessica Kensky and Patrick Downes, newlyweds who each lost legs in the bombing, made the moral case: “If there is anyone who deserves the ultimate punishment, it is the defendant,” they said in a statement to The Boston Globe. “However, we must overcome the impulse for vengeance.”
On a practical plane, Bill and Denise Richard, whose 8-year-old son was killed and 7-year-old daughter lost a leg, warned that a death sentence would “bring years of appeals and prolong reliving the most painful day of our lives.”
Ordinarily, the views of crime victims such as these should carry weight. But this ghastly crime injured multiple victims, with diverging views on punishment. At bottom, this was an offense against the nation, which is why it is fitting that a federal jury is empowered to make the final decision. If they choose, unanimously, to impose death, I, for one, would neither flinch nor mourn.