By Bill Blum
According to a recent Washington Post-ABC News poll, more than 70 percent of Americans support the death penalty for 19-year-old Dzhokhar Tsarnaev if he is found guilty of perpetrating the Boston Marathon bombing.
So, will the Obama administration and the Department of Justice, ever determined to stay tough in the war on terror and safeguard the nation’s security, give the people what they want? The answer, contrary to popular sentiment, is probably not.
Tsarnaev will be eligible for execution if convicted on federal charges of using a weapon of mass destruction and maliciously destroying property resulting in death. And the carnage wrought at the marathon—three people dead and more than 260 wounded, some badly burned, others requiring amputations—was horrific. Surely then the administration, which has ordered lethal drone strikes of dubious legality abroad, has no scruples about the morality of imposing capital punishment at home.
It doesn’t, but the Obama administration is nothing if not pragmatic. In the end, the White House and the DOJ will likely opt to avoid the risks inherent in taking the Tsarnaev case to trial and thereafter weathering a long and drawn-out appeal, and instead offer Tsarnaev a deal to plead guilty and be sentenced to life in prison in return for future cooperation in the government’s continuing investigation.
Despite all its bravado, the Obama administration—and the Bush one before it—entered into plea bargains in several high-profile terrorism prosecutions, including those of Richard Reid, the shoe bomber; Umar Farouk Abdulmutallab, the underwear bomber; and Faisal Shahzad, the Times Square bomber. And although none of those cases involved capital crimes, as no bombs were ignited and no one was killed, the most notable terror prosecution the DOJ actually sought the death penalty in—the 2006 case of 9/11 co-conspirator Zacarias Moussaoui—ended with a jury verdict recommending against it. Instead, Moussaoui was sentenced to life in prison without the possibility of parole.
In endorsing a plea with Tsarnaev, the administration would be following form and, above all, playing the odds. According to the Death Penalty Information Center, since the restoration of the federal death penalty in 1988, the government has tried a total of 190 such cases involving 281 defendants. Some of the cases were resolved before reaching a verdict, but in the instances in which juries were tasked with choosing between life and death, they imposed 143 life sentences and 72 death ones.
Jurors, as opposed to members of the public responding anonymously to opinion polls, have a hard time playing God and condemning other people to die. Yet that is exactly what the current system of capital punishment, in place both at the federal level and in the 32 states that retain the death penalty, calls upon them to do. It also helps explain the risks federal prosecutors face in pressing for the death penalty against Tsarnaev.
Under the rules of “guided discretion”—the name given to the version of capital punishment that the Supreme Court’s 1976 decision of Gregg v. Georgia ruled constitutional—juries must balance and weigh specified aggravating and mitigating factors relating to the charged offense, as well as the defendant’s background and character, to determine who should live and who should be executed. In the federal system, aggravating factors include a defendant’s prior felony convictions and whether the offense presently charged was committed in a “heinous, cruel, or depraved” manner. Mitigating factors include the absence of a prior criminal record and whether the defendant acted under duress, suffered from a severe mental or emotional disturbance or was a relatively minor participant in the charged crime.
Under the federal statutes that will apply to Tsarnaev, moreover, the government will be required to provide advance notice to the defense of the specific aggravating factors it will try to prove, and it will have the burden of proving those factors beyond a reasonable doubt. Tsarnaev, by contrast, will be required to prove mitigating circumstances only by a preponderance of the evidence, a far more lenient standard.
It’s easy to see from the extensive news coverage of the bombings that Tsarnaev will have at least three mitigating factors he can bring up—his youth and clean prior criminal history, and the claim that he acted under the dominance of his older, more evil and now-deceased brother. He will also have at his disposal a group of very experienced lawyers from the federal public defender’s office as well as renowned San Diego attorney Judy Clarke, whose past clients have included Susan Smith, who was convicted of drowning her two children in South Carolina; the Unabomber, Ted Kaczynski; Atlanta Olympics bomber Eric Rudolph; and Gabrielle Giffords assailant Jared Loughner. All faced the death penalty and all, with Clarke’s guidance, avoided it.
Sparing Tsarnaev’s life—should that come to pass—will undoubtedly be welcomed by those who want to see capital punishment abolished as a barbaric relic of the past. Still, any comfort that abolitionists or progressives may take should be measured and brief. The erosion of civil liberties in the post 9/11 era will continue unabated, as will the use of capital punishment generally.
Since 1990, according to Amnesty International, an average of three countries each year have abolished the death penalty, and today more than two-thirds of the world’s nations have ended capital punishment in law or practice. The U.S. is not among them. Presently, there are 61 people awaiting execution in federal prisons, while more than 3,000 others are housed on death rows at the state level.
Even if Dzhokhar Tsarnaev doesn’t join them, a massive amount of work will remain to be done before this country joins the vast majority of the civilized world and outlaws the death penalty, not simply as cruel and unusual punishment, but as a phony and ineffective means of deterring deadly crime, even in the name of national security.