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Sunday, January 20 , 2019, 6:04 pm | A Few Clouds 63º


Susan Estrich: Even with Dzhokhar Tsarnaev, Is Death Ever Justified?

The real trial of Dzhokhar Tsarnaev will begin now that the jury has returned its guilty verdicts.

Tsarnaev, convicted for staging the bombings at the Boston Marathon, didn’t really put on a defense. His lawyers conceded that he was involved (I would say planting the bag against a tree surrounded by children counts as involved), although they did urge the jury to look carefully at some of the charges, including one involving a transit officer who may have been inadvertently shot by another officer.

The jury had none of it. They found him guilty on all 30 counts. Not a good sign for the defense.

No defense lawyer could ever think they had any chance of convincing the jury to acquit a man seen on videotape planting the bomb-filled backpack, who then hid under a boat scrawling jihadist symbols while the city was paralyzed.

What you heard were the beginning tones of what will be the sentencing appeal: Was he unduly influenced by his brother, who planned the crime? Does he deserve sympathy because of his youth (he was 19) or his lack of criminal record? Was he so torn apart by his parents’ divorce and the unrest in his home region that his punishment should be mitigated?

Massachusetts abolished the death penalty in 1984, but Tsarnaev is being tried under federal law, which provides that the same jury that determines guilt also determines the sentence, by weighing aggravating and mitigating circumstances.

Perhaps the most powerful argument against the death penalty, at least in recent political debates, is that our system is just not perfect enough to justify executing convicted criminals. True, we give the accused rights to counsel and appeal, but the U.S. Supreme Court has upheld death verdicts returned against defendants whose lawyers fell asleep, and appeal rights may be truncated.

Led by The Innocence Project, among other reform groups, many states have seen vivid demonstrations of lives literally lost in prison because witnesses lied or evidence was withheld or DNA now proves the verdict was wrong. A system that errs and also acts in as arbitrary a fashion as ours, with stark numerical studies proving that race does play a role in the imposition of the penalty (although it is the race of the victim as well as the killer that must be considered), is simply not good enough to administer death.

It is a very persuasive argument, but it doesn’t much apply here.

The defendant did it. He did it intentionally. He knew what he was doing. It was a particularly heinous crime not only because of the numbers killed and injured, but also because of the particular horror it unleashed on a city, paralyzing it, traumatizing it, spreading hate, that to this day can hardly be expected to be forgotten by these jurors.

That is not, by the way, an argument that the trial should have been moved; it is an argument that they are his peers.

This is not a case where we need to worry that we have the wrong guy or that we picked him out for some arbitrary reason.

Nor is it a case where his crime is no worse than so many others. It was. It was much worse. Terrorizing a city and spreading hate is much worse. You can scrawl jihadist slogans on the boat under the First Amendment, but you can’t act on them.

Does this man deserve to die?

Should we execute him because we can?

Now there is the question. Punishment is supposed to deter — and you can play the statistics on that and get nowhere — and incapacitate. But in these cases, we are talking about the alternative being life without parole. While some death row convicts understandably say they would prefer death, many fight for years.

 Legally, the fate of the defendant will be decided by the “death qualified” jurors, individuals who swore that they are not opposed to the death penalty or could be open to its application.

If I were a betting woman, I might say that a 30-0 jury on the counts is not predisposed toward this defendant. But Massachusetts hasn’t voted pro-death penalty in decades, and so it is worth watching — and thinking about.

The hard questions posed by the trial in Boston are not about the defendant and his rights, but about us and how we use our power.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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