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Why Dzhokhar Tsarnaev Should Not Get the Death Penalty

A jury will have to decide whether the Boston Bomber deserves to die—but if they do, they'll be serving vengeance, not justice.

by E.J. Graff
Apr 21 2015, 4:00am

National Guardsmen walk through the affected area a day after the Boston Marathon Bombing. Photo via Flickr user The National Guard

All of Boston stopped to watch the Boston Marathon bomber trial verdicts roll in. Maybe "all" is an exaggeration, but that's how it felt. For half an hour, so many were riveted to Twitter or television, watching as reporters passed back word on each verdict in 30 charges.

Like hammer blows they came down:

Guilty. Guilty.

Guilty.

Of course, the decisions on the first dozen charges were hardly surprising: During the trial, Dzhokhar Tsarnaev's lawyer had almost immediately acknowledged that he did it; surveillance videos caught him placing his backpack bomb just before it exploded.

But the roll call of "guilty" continued jolting through all the parts of Count 16 and beyond—possessing and using a Ruger semi-automatic handgun to kill MIT campus cop Sean Collier, a murder that could have been committed by his older brother, Tamerlan. The jury was holding Dhzokhar equally responsible for that, too? And it continued through every single count: Guilty of it all.

The 12 people responsible for levying justice in our name appeared ready to send this young man to death row. But is execution really justice, as opposed to vengeance?

Some clearly think so. "Just watching the coverage makes me sick and want to cry," texted one friend, a prosecutor—who added, as the guilty verdicts continued, "I hope he has a long and grueling death."

But not all of us do. Another friend's sons went to high school with Dzhokar, and one partied with him. She texted, "So painful how his life went so wrong, leading him to take innocent lives. Every part of me wishes we could turn back time."

Let's be clear: If any crime merits the death penalty, it's this one. Dzhokhar Tsarnaev will not be exonerated, not by DNA or anything else.

As the verdicts were announced, outside it hailed as if in biblical counterpoint, stark and fitting punctuation to the end of Boston's marathon endurance of the brutal crime, the brutal trial, and the brutal winter of 2015.

Did I write "end"? This was a pause, not an end, a pause during which we take time to remind ourselves we are alive, during which we celebrated a second post-bombing Marathon. Now begins the play's more dramatic second act, the sentencing phase that could last for weeks, in which prosecutors will argue that Dzhokhar w­­as a hardened terrorist committed to slaughter and destruction who deserves to die at the government's hands, while the defense will plead that he was a disturbed slacker from a disastrous family manipulated by his older brother and who deserves life in prison for his inexcusable crime.

The jury, our Greek chorus, will have the final say.

Let's be clear: If any crime merits the death penalty, it's this one. Dzhokhar Tsarnaev will not be exonerated, not by DNA or anything else. No manipulative prosecutors withheld evidence; no jailhouse liars testified against him in exchange for a lighter sentence. Dzhokhar Tsarnaev planted a dirty homemade bomb in the beating heart of Boston on our day of communal celebration. He knowingly placed it next to happy children and families and amateur runners, shredding flesh and shattering bones and setting bodies on fire. He killed three people that day, caused another 16 to lose limbs, wounded at least 260, and blasted hundreds of others into a war zone surrounded by bloodied noncombatants. But beyond that immediate circle, Dzhokhar Tsarnaev exploded our city's peace. This wasn't just a murder, or two, or three, or four. This attack—as he intended—lacerated us all.

And still, the majority of this city believes he should not be killed in our names. In a WBUR poll conducted during the trial, just as the victims' suffering was being reported and broadcast daily, 62 percent said he should get life in prison, not death. Even while we were listening to detailed evidence of evil, the city's opposition to executing Tsarnaev had remained steady since a Boston Globe poll taken in September, long before the trial. The pro–death penalty Boston Herald opiners and my friend the prosecutor are the minority.

Most of us want him banished from society, not dead. That includes Bill and Denise Richards, who watched as their eight-year-old son was brutally blasted to death and their seven-year-old daughter lost her leg, and whose extraordinary front-page statement in the Boston Globe asked the US Attorney's office to spare Tsarnaev the death penalty if he agrees to waive all rights to appeal. (Of course, other bombing survivors respectfully disagree, and are hoping for his execution.)

In a democracy, justice is not for the victims; they can never be restored, their lives put back as they once were.

Why does Boston oppose a death sentence for this ungrateful war refugee who spat in the face of his high school's motto, "opportunity, diversity, and respect"? I have heard a list of reasons. The Martins ask to be spared from the years of appeals, saying, "As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours." Others make a developmental neurology argument: Dzhokhar was only 19 and easily manipulated by his older brother; the frontal cortex, which governs impulse control, isn't fully formed until the mid-20s. There's the don't-give-him-the-satisfaction/anti-terrorism argument: Execution would make him a martyr, just as he wanted, it would transform him into a terrorism recruitment poster instead of a deterrent. There's the vengeance argument: He'll suffer far more in a solitary federal supermax cell, "virtually living in a bathroom" of just a few square feet, " rotting in prison for the rest of his life," than he would through a quick escape through death. And there's the spiritual argument: We as a society are better served by mercy than by cruelty and vengeance—as the slain MIT officer Sean Collier's sister wrote, she "can't imagine that killing in response to killing would ever bring me peace or justice... enough is enough."

Beneath or beyond all those ways of reasoning lies still another: an argument about the purpose and meaning of justice. In a democracy, justice is not for the victims; they can never be restored, their lives put back as they once were. The state intentionally takes the process out of their hands to ensure that justice is cool-headed and deliberate instead of red-hot and vengeful. Tsarnaev endorsed killing in revenge for killing on the sides of the backyard boat where he lay, bleeding and in hiding after a firefight with police, waiting to die or be found. But vengeance continues the cycle of violence; it's the way of tribes, clans, and gangs, not of civilization. Justice can restore only one thing: our democratic society and the rule of law. The jury acts as our citizen proxies, our randomly selected democratic representatives, to judge whether the accused has violated our laws. Justice means sending him to the penalty we have collectively assigned to the crime. Seventeen of the charges on which Tsarnaev was found guilty carry only two possible sentences: life in prison or death.

When death is one of the possible penalties, the jury decides if it's warranted. That means we don't decide—they do.

Related: More terrorism on American soil.

But does this jury represent us? We know that it does not. These 12 were selected precisely for an inclination that most in Boston do not possess: They would be willing to sentence Tsarnaev to death. Death-qualifying a jury—picking jurors who would be willing to sentence a defendant to death—means selecting people with uncommon temperaments: They are quicker to convict, less contemplative, more skeptical about mitigating circumstances, more likely to trust authority, and more likely to believe that justice means vengeance. Necessarily, these 12 people have for weeks been immersed in gruesome details about the bombing while the vast majority of us have looked away. (According to polling, a smaller percentage than usual for a big trial say they are following this one "closely.") Some of these jurors cried; all must have been profoundly wrenched. Meanwhile, they have watched Tsarnaev reveal not a flicker of feeling. His disengagement—which observers have variously speculated might be due to brain damage in the firefight, resignation at never being part of society again, or monstrous lack of empathy and emotion—cannot have made it easier for his attorneys to save his life.

That is, if indeed he wants it saved.

On the other hand, the death penalty must be arrived at unanimously. If the defense can persuade even one juror to hold out, Tsarnaev will go to supermax instead of death row. And so those of us opposed to the death penalty, even for terrorists, must now hope for such a holdout, a stubborn objector. Our proxies have already agreed to exile Tsarnaev forever from human society, never to be free again. Authorizing his murder could do nothing more. Bloodying our collective hands in vengeance would, rather, weaken our civilization into something less.

E.J. Graff is a senior fellow at the Schuster Institute for Investigative Journalism at Brandeis University. Follow her on Twitter.