On the Death Penalty & Prison, a Web of Contradictions

The conviction of Dzhokhar Tsarnaev for murder was, essentially, a foregone conclusion; that the jury would also choose to impose the death penalty, however, was not. Last week, after 14 hours of deliberation over three days, the dozen members of the jury voted unanimously to sentence Dzhokhar to death for six of the 17 capital charges they had earlier found him guilty of.

The sentence will be formally handed down in June, but it will be years before the condemned sees the inside of an execution chamber, if he ever does.

For many, the attraction of the death penalty lies precisely in its finality and its certainty: capital punishment provides society with a way to definitively obliterate the worst of the worst. The irony, palpable in every capital case, is that in our modern justice system, the death penalty has become anything but final and certain. Federal cases already require an automatic appeal – but these can and often are extended by additional appeals. Any of those can result in a new trial, a new sentencing phase, or a reduced penalty. Additionally, a governor or President might be persuaded to offer clemency.

All in all, the average time between sentencing and execution is more than ten years, and some evidence indicates that fewer than half of the people sentenced to death are ever actually executed.

Death might be final, but a death sentence is decisively not.

And that’s only one of the contradictions highlighted by the trial of Dzhokhar Tsarnaev and the conversation that has surrounded it. Another is that Dzhokhar received a death sentence from a court in Massachusetts, a state that abolished the death penalty over 30 years ago. Even at that point, it had already been close to 40 years since the state had actually executed someone.

True to their beliefs, most residents of the Bay State have opposed the death penalty for Dzhokhar. That includes the parents of Martin Richard, the eight-year-old killed by the pressure cooker bomb that Dzhokhar planted behind him and his family at the finish line of the Boston Marathon.

A makeshift memorial to the victims went up on the corner of Boylston and Berkeley Streets. © Pedro Alberto Arroyo

A makeshift memorial to the victims went up on the corner of Boylston and Berkeley Streets. © Pedro Alberto Arroyo

But while many detractors of the death penalty root their opposition in humanitarian concerns, there has also been another line of argument – one that is a bit harder to disentangle or make sense of.

It is not uncommon to hear people oppose the inhumanity of the death penalty and then, in the same breath, go on to explain how the death penalty is too lenient. The idea that death is not punitive enough – and that a lifelong imprisonment is actually a worse fate – seems common.

In fact, Dzhokhar’s own legal team seemed to be feeding this sentiment to the jury when they highlighted the sparse and isolated existence that would await their client if he were sentenced to life in prison with no possibility of parole rather than executed. They went on to explain that a life sentence would bring “no more spotlight like the death penalty brings…[it] will be over for good and [there will be] no martyrdom.”

The exercise was transparently self-defeating: the argument that what Dzhokhar really wants is to be martyred is untenable in the light of the obvious facts. If what he wants is to be executed by the government, Dzhokhar could have pled guilty, but the contention all along has been that he was only willing to do that if the death penalty was taken off the table. Which isn’t surprising. After all, when confronted with the opportunity to go down in a hail of bullets, Dzhokhar chose instead to run his brother over and cower in a boat as the police closed in.

If Dzhokhar wanted martyrdom, all he had to do was stand up. He didn’t.

From the comfort of our homes, it is easy to imagine that we would rather die than be locked in a cage. But when confronted with just that prospect, actual people almost invariably fight their sentences. So then, why persist in the fiction that life imprisonment is a worse fate than death?

In the west over the last century, the general thrust has been one of growing opposition to the death penalty and it is easy now to find ‘conscientious objectors’ to capital punishment. But many of those objections seem to come covered in a thick patina of disingenuousness. In Camus’ 1957 essay, Reflections on the Guillotine, he discusses at great length the visceral barbarity of decapitation as a form of punishment. He’s disturbed by the spectacle and by the fact that the condemned often don’t know when the moment of their death will come – the state simply shows up, carries them off, and kills them.

Today, the arguments are inverted. The problem with the death penalty, we are told, is not that it is too gruesome, but that it is has become too sanitized. Likewise, the problem isn’t that the condemned doesn’t know when he will die, but rather the torture that comes with knowing the precise moment of his death. Not that it is done too often, but that it is carried out too seldom and is therefore capricious.

Not that it is too cruel, but rather that it doesn’t punish enough.

And that is at the heart of the contradiction: that even as many people have become uncomfortable with taking the lives of prisoners, they still feel a deep sense that the guilty need to be punished. The result is a web of half-truths and self-deceptions.

In her closing statements to the jury, defense attorney Judy Clarke said that “Dzhokhar is not the worst of the worst, and that’s what the death penalty is reserved for — the worst of the worst.” The problem is that neither of those statements is true. Judy Clarke is an adamant opponent of the death penalty, so she does not presumably believe that the death penalty is appropriate for the worst offenders. And Dzhokhar Tsarnaev, who carefully planned and carried out a terrorist attack that killed four and maimed many more, is certainly among the worst.

(Those who argue that he was a product of Chechen culture do a tremendous disservice to countless Chechens and forget that he went to high school in Cambridge, while those who argue that he can’t be held responsible because he was 19 at the time of the attacks must have been pretty terrifying teenagers themselves.)

There are many good reasons to oppose the death penalty. Perhaps the strongest is the compelling evidence of systematic misuse. But many opponents are hampered in making their arguments by their inability or unwillingness to grapple with the heart of the matter: guilt, responsibility, and punishment.

Returning to Ms. Clarke’s comments to the jury, she observed that “a sentence of life imprisonment without the possibility of release allows for hope and redemption.” Perhaps that’s true, though cynics might point out that even with a death sentence, Dzhokhar will have years to find redemption if that’s what he wants.

But what kind of redemption could it be? The state has already decided to close the book on Dzhokhar; sentenced to death or not, he will never see the outside of a cell again. Society is manifestly disinterested in redeeming Dzhokhar or people like him. But it doesn’t want to admit that to itself.

People like Ted Kaczynski, Zacarias Moussaoui, Richard Reid, and Charles Manson are rotting in prison, confined to parking-spot sized cells and isolated from human contact. The people arguing for Dzhokhar Tsarnaev to join them might believe in a lot of things, but they shouldn’t be allowed to say that redemption is one of them.

Follow Pedro on Twitter @IamPedroA.

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