This week, Boston passed an important milestone on its road to recovery from last year's horrific bombing: the city's annual marathon came and went without incident. And while the scars, both literal and figurative, are still very real for the bombing's victims, the healing process has largely shifted out of the public gaze. Yet, there remains one unanswered question that will inevitably push the bombing back into the focus: will 20-year-old Dzhokhar Tsarnaev get the death penalty?
Though Massachusetts is not a death penalty state, federal prosecutors announced in January that they would seek the execution of Tsarnaev, and it appears they have a good deal of support nationwide for their decision. While just a third of Boston residents favored executing Tsarnaev according to a September Boston Globe poll, polling conducted nationally in May of 2013 found that 70 percent of Americans would support the death penalty for Tsarnaev if convicted. Compare that with the 55 percent of adults who favor the death penalty generally, and it appears that Tsarnaev has inspired more than a few special-case considerations.
And Tsarnaev's case is the sort of unusual example that can buttress the argument for the death penalty, were someone so inclined. Beyond the gravity of the crime itself, there is also little doubt of Tsarnaev's own guilt: He gave a confession shortly after his capture, and allegedly scrawled one on the wall of the boat he hid in during his pursuit. Though some still insist that Tsarnaev's confession should be thrown out given that he had not been properly Mirandized at the time, and his defense team appears to be preparing a sort of coercion narrative based on the influence of Tsarnaev's now deceased older brother Tamerlan, the fact remains that he appears to have produced a cogent account of what he did and why he did it.
But the certainty of Tsarnaev's guilt is, in my thinking, a good reason to make his case a worthy argument against the death penalty. Each of the points posed above that would militate against his execution — possible coercion, improper handling of Constitutional rights, the slim possibility of innocence — are all based on the idea that the death penalty is wrong because it is so often handed down in error. This leaves open the potential for a world in which the death penalty is handed down without those errors, which would by those standards render it a just penalty. But I am willing to concede everything the pro-death penalty agents in the case of Tsarnaev conclude: that he is guilty, that he is responsible, and that the constitutional issues in his case appear to have been vastly blown out of proportion by the media. And he still should not be executed.
This brings us to the point attorney Alan Dershowitz made shortly after the bombings: "if this defendant does not deserve the death penalty, then no one does." If Tsarnaev is the limit case — the circumstance in which none of the error-based arguments against the death penalty work — then holding the hardline position that he still should not be executed makes a much more profound point against execution at large. And Tsarnaev's case is doubly useful for making the argument against the death penalty precisely because his criminal activity was based overtly in a complaint against the United States itself.
The brothers Tsarnaev didn't have a sophisticated set of grievances, but rather a broad theme: that the United States plays fast and loose with human life abroad. For the Tsarnaev brothers, this was offensive because of its affect on Muslim populations overseas; but the statement the complaint makes about the character of the United States is rather more broad, namely that the country does not appropriately value human life. While some might view it as a kind of capitulation to allow Tsarnaev to live in light of what he has done, it appears to me that it would be more of a capitulation to kill him. In that case, we would be surrendering to his vision of what the United States is, and conforming to the view that human life is of mutable value in this country's policy.
But the fact is that human life is not of mutable value; it is, rather, the chief object of moral concern. Tsarnaev is in the wrong precisely because he and his brother showed a callous disregard for human life in the vicious attacks they carried out, but by refusing to allow our ethics to degenerate to that level, we have the opportunity to both disavow his behavior by example and to assemble a more sturdy ethical position from which to carry out that disavowal in the long term.
And there is more to be gained from jettisoning the death penalty than the moral high ground. By removing the death penalty from its repertoire of sentences, the states makes a permanent sort of commitment to its citizenry: No matter your offense, the value of your life is still unconditionally affirmed. This removes the extraordinarily adversarial edge that the death penalty brings to the cases it's invoked in, and could easily be the foundation of a justice system more based on rehabilitation — which by its very intent upholds the value of the offended and the offender as related rather than opposed — than retribution with no possibility of repentance or restoration.
The death penalty is in practice wrought with error, but it is also fundamentally wrong because it agrees more with philosophies like the one Tsarnaev himself seems to have operated on than one that would correct and potentially rehabilitate him. As an extremely powerful and highly visible institution with the ability to influence discourse and public thought, the United States' government should affirm the immutable value of human life in direct opposition to both the image of the U.S. Tsarnaev maintains and the type of response he undertook, because human flourishing does not arise from the escalating devaluation of human life. Everyone counts, even the worst; anything less is a moral hazard at the least and a direct danger at the most.
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