If Not Him, then Whom? Boston Marathon Bomber Dzhokhar Tsarnaev and the Death Penalty – By Anthony Santoro

Anthony Santoro on vengeance, mercy, and the death penalty one year after the Boston Marathon Bombings

Boston Marathon explosions. Image via Wikimedia Commons.
Boston Marathon explosions. Image via Wikimedia Commons.

In July 2005, Talia Emoni Williams’s father and stepmother beat her to death for wetting herself. The tragedy was the end to the regular abuse that Talia suffered since coming to live with her father seven months prior. The walls of the crime scene were spattered with her blood. Here Talia was regularly beaten bloody with a belt, kicked hard enough to leave imprints of boots on her small body, and allegedly made to eat her own feces. Because the murder happened on an Army base, it fell under federal jurisdiction. Then-Attorney General Alberto Gonzales authorized federal prosecutors to seek the death penalty, despite the fact that Hawaii abolished the death penalty in 1957, two years before it became a state. This is a somewhat unusual detail in what is a fairly routine process. Of the fifty-nine people currently on federal death row, seven committed their crimes in states without the death penalty, including one in Massachusetts. Williams would be the first federal death row inmate to have committed his crime in Hawaii, but he is not the only person facing the federal death penalty for a crime committed in an abolitionist state.

Two separate bombs detonated on April 15, 2013, in the vicinity of the Boston Marathon’s finish line. Described in the legal proceedings as “improvised explosive devices,” these pressure-cooker bombs were loaded with BBs, nails, and other objects to create as much shrapnel as possible and to kill, injure, and maim indiscriminately. The explosions killed three and wounded over 260. The last surviving victim to leave the hospital did so in late July, over three months after the attack. The emotional injury done to the victims, their survivors, and their families will last far longer.

Authorities quickly identified two brothers, Tamerlan and Dzhokhar Tsarnaev, as the suspected perpetrators. Tamerlan and Dzhokhar, ethnic Chechens born in Russia and Kyrgyzstan, respectively, arrived in the U.S. as refugees in 2002. Dzhokhar became a naturalized U.S. citizen in 2012, while Tamerlan had reportedly aspired to citizenship in order to compete for the U.S. as an Olympic boxer. A four-day manhunt ended with Tamerlan dead and Dzhokhar captured. Despite early calls to treat the younger Tsarnaev as an enemy combatant, to the point perhaps of trying him without counsel, the Obama administration opted to try him in civilian court. On January 30, the Department of Justice filed a “Notice of Intent to Seek the Death Penalty,” listing the factors permitting it to seek the death penalty, including multiple counts of intentional killing, death during the commission of another crime (“destruction of property affecting interstate commerce by explosives”), the “heinous, cruel and depraved” nature of the offense, and the vulnerability of the victims. Listed first among the non-statutory aggravators is “Betrayal of the United States,” the country to which he was granted asylum and of which he became a citizen.

The decision to bring capital charges against Tsarnaev is inherently political. Capital cases always are, because they are brought at the discretion of prosecutors, who are elected officials or are answerable to elected officials. We do not necessarily know why the administration opted to seek the death penalty. They may have wanted to show a “tough” response to terrorism. They may also have wanted to use the penalty as leverage to coerce Tsarnaev into pleading guilty in exchange for a life sentence. But whether or not one believes the death penalty is justified in this case, one needs to understand it is a political decision.

Calling the judgment political does not make it more or less appropriate in and of itself. We can look at Tsarnaev and Williams’s crimes and see the “worst of the worst” that death penalty proponents say justifies the state taking some lives as punishment. Beating a five-year-old child to death because she wet herself is so savagely inhuman, so evil, as to deserve society’s ultimate sanction. So is a terrorist attack on a public event like the Boston Marathon. America’s oldest and best-known marathon, run annually on Patriots’ Day, the race is a self-conscious celebration of America.

To ask a deceptively simple question, if the death penalty does not exist for Tsarnaev, then for whom does it?


Respondents in a Boston Globe poll from September 2013 overwhelmingly favored (57%-33%) life in prison for Tsarnaev rather than capital punishment. A year after the bombings, we see that public support for the death penalty is at its lowest level nationally in over forty years, that six states have abolished it since 2007, and that two other states may do so this year. And now we see federal prosecutors seeking a death sentence against a man whose crime was committed in Massachusetts, a state that abolished capital punishment thirty years ago and whose residents oppose his execution.

What should we make of this? We can see many things in Tsarnaev’s case, perhaps most clearly among them the ambivalent relationship the United States has with the death penalty and the moral reflection it can prompt. At a moment when lawmakers on both sides of the political aisle are increasingly questioning mandatory minimums for non-violent drug offenses, when calls for an end to solitary confinement are gaining momentum, when the Obama administration is considering a potentially unprecedented use of the pardon power to correct some of the most grievous errors of the various crime- and drug-related wars of the past decades, when popular support for capital punishment continues to drop, as does the number of states that retain the death penalty, we confront a high-profile federal death penalty case stemming from an act of terrorism in Boston.

We also notice the quality of Tsarnaev’s legal team, which includes Judith Clarke and David Bruck. Clarke and Bruck were co-counsel in Susan Smith’s trial, and Clarke helped defend Unabomber Ted Kaczynski; Eric Rudolph, a serial bomber who targeted abortion clinics and the Atlanta Olympic Games; Zaccarias Moussaoui, the alleged twentieth 9/11 hijacker; and Jared Loughner, who killed six and wounded thirteen when he attempted to assassinate Rep. Gabrielle Giffords at a public event in Tuscon, Arizona, in 2011. In this instance, we are living up to our constitutional and moral obligation to provide defendants charged with even the worst crimes with a supremely qualified defense.

Alas, this is not the case for many individuals on trial for their lives. Tales of lawyers sleeping through or drunk during trials are legendary but true. So are allegations that lawyers wholly inexperienced in criminal law have been appointed to defend those charged with capital murder. The problem is not that Tsarnaev’s defense team is exceptionally qualified — we should demand that as a minimum requirement when the state seeks the death penalty. The problem is rather that Tsarnaev’s defense team is very much the exception.

Tsarnaev’s team is currently fighting with the state over access to a variety of evidence, including autopsy photos of the victims. Prosecutors are resisting these requests in part on the grounds that disclosing the photos to the accused further harms the victims. They are claiming their right to disclose the photos to Tsarnaev’s counsel while stipulating that Tsarnaev be prevented from viewing any but those admitted into evidence.

There is a compelling logic to the claim that showing autopsy photos is a second assault of the victims. Tsarnaev remains in a position of power, even though he is held powerless in a jail cell. Where once he took their lives, he now can gaze upon the victims in circumstances wholly beyond their control. They have been reduced to bodies, and those bodies reduced in some of the photos to their corporeal essences — they are nude, unclothed, un-covered, literally and figuratively laid bare. Unquestionably, showing Tsarnaev the photos constitutes further harm.

Even so, we need to be conscious of the tendency to allow the initial harm to compel us to act against our own ideals. The Sixth Amendment gives us the right “to be confronted with the witnesses against [you and] to have compulsory process for obtaining witnesses in [your] favor.” This right is difficult to square with prosecutors trying to allow the defense team access to evidence but barring the defendant himself from that evidence, or compelling defense counsel to withhold evidence from their client. This is where the contests over disclosure, even the disclosure of injurious information, are so vital not just in this case but also more broadly. If we focus too keenly on trying to punish the monster, we lose sight of the fact that the monster is a person. If he is a person, he is fundamentally interchangeable with other persons subject to the criminal justice system — with anyone. If Tsarnaev may not fully participate in his own defense, on what grounds may you or I?

There is another prophylactic effect of hiding the pictures from the defendant — they and what they depict are rendered secret, private, even within the proceeding. We, the people, are as insulated from their graphic content as is Tsarnaev. While this does protect, it also alleviates us of the responsibility to witness, and to bear witness to the violence that has been done and is being sought in our names.

Robert Blecker’s recent book, The Death of Punishment, speaks directly to this question of confronting the violence that is done in our name. Blecker offers a model death penalty statute that calls for executions to be performed via firing squad or another unambiguously violent method, rather than the ambiguously medical method that is lethal injection. He calls on us to acknowledge the violence that we are doing, to own what we are doing, what we are using. This is a point on which death penalty proponents and opponents should agree: We should own and understand the violence that occurs in our names and in which we are explicitly complicit — the case is, after all, United States of America v. Dzhokhar A. Tsarnaev. Let us acknowledge that we are engaging in violence to right ends, or let us acknowledge that we are engaging in violence to wrong ends, or let us acknowledge the need to refrain from violence for either reason. But let us acknowledge and proceed accordingly.

There is power in this acknowledgment and in each of the possible outcomes. The lesser violence of locking Tsarnaev up for life, there — dare we hope? — to repent confers on us greater power, but not without risk. Locking him up means, as Massachusetts governor Deval Patrick evasively observed, Tsarnaev will die in prison. There is risk in a life sentence, though it is not the risk that the government has blandly offered, that Tsarnaev would somehow develop and mastermind a terrorist organization from within a federal prison. The risk is that Tsarnaev remains defiant, that he never repents, never sheds his perspective to adopt ours. He will have retained power in that sense, albeit in a limited fashion. He will have cost us time, and effort, and money, and anger, and fear, and love, and life, and hatred alongside the blood he has spilled, doubling down on what he cost us on April 15, 2013. We will have retained some measure of power by keeping him there, subject perhaps to “prison justice,” to use that purposefully morally elusive term.

Like every other terrorist who has successfully attacked the United States, Tsarnaev has exerted power both in his actions and by opening us up to division among ourselves. We need to recognize how readily we can move from disagreeing with one another to attacking each other. Tsarnaev did not cause us to do this any more than did Osama bin Laden, Timothy McVeigh, or the Beltway sniper John Allen Muhammad. But Tsarnaev did provide an occasion for us to discover who among us does not belong, who does not fit our idealized vision of who we are, which too often is defined largely, if not entirely, by a disagreement of opinion in political, religious, or cultural debates. He has power over us because he has opened that door. It is up to us to walk through, and so often we do, striding headlong into recrimination, self-doubt, anger, and fear.

But behind the recrimination is affirmation. Whether we favor life or death in this instance, we are arguing and hating and recriminating over the means, not the ends, a fact that often eludes us. We take it for granted that our conception of justice is just, that whether we seek blood atonement or to stay the hand, whether we are conflicted or unwavering in our convictions, we know that our desired end is justice. We know as well that what we want for Tsarnaev — justice — is what we want for ourselves. We need to acknowledge, though, that we also want affirmation that what we know is just is so not because we know it to be so, but rather, that we know it is just because in truth it is. What is just is not so because we recognize it as such and declare it so; we recognize it as such and declare it so because it is. We want affirmation that we are on the side of a transcendent just, that we are right.

We need to recognize a danger latent in our desire for this affirmation. We can certainly draw comfort from the knowledge that we’re getting it right most of the time, but that comfort can pull us in either of two directions. It can lead us toward a powerful assertion that we are fundamentally good, based on the balance of the evidence, or it can guide us toward a recognition that we could be and need to be better, and that we may not know immediately whether we have the power to be better, to become better — to progressively lessen the slip around the margins and so expand the scope of our moral action.

We can think about the dilemma articulated by Reinhold Niebuhr, whom President Obama praised as his favorite theologian. In his famous letter to James Conant from March 12, 1946, Niebuhr wrote that he believed it important “to admit the moral ambiguity of all righteous people in history, who are, despite the good they do, involved in antecedent and in marginal guilt.” Elsewhere, Niebuhr noted that “Every ‘righteous’ national or political cause is partly guilty of the evil against which it contends. That is its antecedent guilt.” There is, he asserted, “no escape from guilt in history.”

Niebuhr’s letter to Conant was part of a discussion about why Niebuhr supported the use of the atomic bomb against Japan. His call to critical self-reflection does not lead to a pre-determined end but should be undertaken in the earnestness with which he expressed it. As we confront Tsarnaev’s crimes and measure our reactions — individual, political, juridical — this call distills down to the question of how we confront the moral issues of exercising power when we are right to do so. How do we exercise power rightly when we are right to respond, when we are right to condemn, when we are right to exact punishment for a wrong that has been done? When we look at how we respond to this bombing on a moral and on a societal level, what do we see? It is most difficult to consider this kind of moral self-critique when we know that we are right, but that may be when it is most necessary to do so.

In the end, we know that what we do with Tsarnaev has far less to do with him than with us. The decision of how we proceed is ours, so long as we acknowledge and accept it. It would be easy to say that he has killed himself, that by committing this crime, he has determined his sentence and that there is no other potential response than to put him to death if he is guilty. This is understandable, given the nature of the crime, but it is nevertheless an expression of our perceived weakness. Why must that monstrosity dictate our response? Why does the crime victimize us beyond its violence to the point of removing from us our capacity to choose how we respond? Why must we remain weak in the face of this offense? Why give Tsarnaev further power over our most fundamental values and us?

The choice must be ours, as jurors, as potential jurors, as citizens, and as moral beings. We must choose life or death. If we consider mercy, we should again ask ourselves, “if not him, then whom?” That question is not limited to the question of death, however; it is equally valid when turned to the question of mercy. Should it be easy to grant or galling to countenance? Is the quality of mercy defined by the difficulty with which it is granted?

If not him, then whom?

He doesn’t merit mercy, but that’s beside the point. If mercy is extended only to those for whom it is justified, then it wouldn’t be mercy — it would only be the prevention of injustice. That the recipient is undeserving makes mercy what it is. Even if Tsarnaev doesn’t deserve to receive it, we deserve to grant it. If we don’t, we should aspire to.

Also Recommended from MRB: