By Dave Oedel
On Friday, May 15, 2015, the Boston marathon bomber Dzhokhar Tsarnaev, 19 at the time of the bombing two years ago, was sentenced by a unanimous federal jury to death instead of life in prison after Tsarnaev earlier had conceded participating in the murders.
My wife and I have run the Boston Marathon three times in the past few years, and my sister-in-law witnessed the bombs exploding near the finish line. None of that gives me any more insight than anyone else on the appropriateness of the death penalty in Tsarnaev’s case. In its extensive coverage yesterday, though, the New York Times suggested that most Massachusetts citizens, where I was born and raised, and by extension many Boston marathoners, are offended by the verdict.
The Times and its friends didn’t poll me. After young Dzhokhar tried to kill people like my family members and me at the world’s most iconic marathon, and then showed no meaningful remorse two years later, you tend to pay a little more mind to the trial and its underlying issues. It’s especially riveting when you see Islamic jihadists akin to the Tsarnaevs continuing to call for the deaths of American infidels. “Death to America” is a cry still heard loudly in significant regions of the world – including cries by leaders of an Islamic theocracy with whom our President is now negotiating a deal to allow the Islamists to garner nuclear capabilities.
I’m no fan of the death penalty, but not because of the asserted amorality of death as a penalty for the worst murders, or because I categorically reject the Old Testament’s concept of an eye for an eye and a tooth for a tooth. Although that moral code is perhaps less “evolved” than that of the casting-no-first-stones Jesus, it still sounded fair enough to revered liberal Christian theologians like Dietrich Bonhoeffer. Bonhoeffer was executed for participating in a 1944 attempt to assassinate Adolph Hitler after Bonhoeffer became convinced that Hitler was a genocidal maniac. Bonhoeffer was a better theologian than I would ever pretend to be, and he wasn’t above a theologically justified killing of Hitler.
But theology is not why I support the jury’s decision in the case of the young Tsarnaev. For me, it’s not really a religious, moral or philosophical thing. It’s a legal thing. As a law professor, I’m no fan of the death penalty for the same reasons that U.S. Supreme Court Justice Harry Blackmun, near the end of his term on the Court, ended his long defense of the death penalty. Blackmun explained that he could finally no longer justify the penalty because of its inconsistent and sometimes erroneous imposition while the Court “tinker[ed] with the machinery of death.” Why should some get death but others who do worse things don’t? How can we justify the death penalty when some death-row inmates have turned out later to have been obviously innocent?
But Tsarnaev’s case overcomes Blackmun’s concerns. Tsarnaev deserves the Boston jury’s verdict first because he readily admitted the most criminally heinous of conceivable acts. The jury in its elaborate sentencing verdict effectively explained that it didn’t give the death sentence because Dzhokhar participated with his older brother in planting the older brother’s bomb, or because of the shooting of the MIT officer days later. The jury indicated instead that its verdict was based on Dzhokhar’s personal planting of a bomb, Dzhokhar caught alone on videotape, right behind young children, revealing Dzhokhar’s clear personal intent to harm the most innocent of his various American-affiliated victims. Moreover, after many months of watching Dzhokhar and hearing evidence in court, the jury concluded that Dzhokhar lacked remorse.
We should be skeptical of government-sanctioned killing in every case, be it in warfare or other circumstances. But when someone like Dzhokhar declares war on your national family, and then acts accordingly, by admission and with no ambiguity, legal doubts are diminished.
There is no credible mistake about Dzhokhar’s act and intention. There is almost no doubt about Dzhokhar’s lack of remorse.
Ironically, critics of the death penalty should accept this particular jury’s verdict of death, because there are few verdicts that will ever be based on such a stunningly high level of justification. The Dzhokhar standard would be hard to achieve in almost any other case for death that otherwise typically comes before any jury anywhere in the United States.
Dzhokhar deserves death. That does not necessarily mean that others do, whether in Boston or Middle Georgia. Still, we need to be able to say that government-sanctioned death can be defensible, as in the Tsarnaev case.
Two days before the Boston jury issued its verdict, Norman Fletcher, who served on Georgia’s Supreme Court for 15 years, some of those years as chief justice, said that he now believes the death penalty to be categorically “indefensible.” Fletcher seemed implicitly to be referencing the question being weighed by the Boston jury.
Fletcher was wrong. Even if some moralists might have decided differently, the Boston jury’s decision is, at the very least, genuinely and fairly defensible under U.S. law and the facts of Dzhokhar’s deeply disturbing case.